c.7- 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


ON  THE 

PRINCIPLES  AND  PRACTICE 

OF  THE 


ACTION  OF  EJECTMENT, 

AND  THE 

RESULTING  ACTION  FOR  MESNE  PROFITS. 


BY  JOHN  ADAMS, 

u1 

OF  THK  MIDDLE  TEMPLE,  ESQ.  BARRISTER  AT  LAW 

7  Vow  the  last  London  Edition. 


TO  WHICH  HATE  BEEN  CAREFULLY  NOTED, 

THE  DECISIONS  OF  THE  SUPREME  COURT  OF 
NEW-YORK, 

Front  January  Term,  1799,  to  October  Term,  1820. 

WITH  RVFEtlENCES  TO  DECISIONS  IN  THE  COURTS  OK  MASSACHUSETTS 
'      AND  PENNSYLVANIA,    AND  THE  SUPREME  COURT  OF 
THE  I'MTED  STATES. 


BY  PHILO  RUGGLES,  ESQ. 

COUNSELLOR  AT  LAW. 


prilLISIlED  BY  STEPHEN  OOULI>,  (SIGN  OF  LORD  COKEO 
Corner  of  Wall  and  Broad-Strtett. 

Wm.  G  rattan.  Printer. 
1821.       * 


Southern  District  of  JVeto-lY 

BE  IT  Kli.M  .  That  on  the  tenth  day  of  Matvb,  in  tlie  fol 

Independence  ol    tin;  United   States  of  America,  WILKY  6c  11ALSTK1).  of  tin- 
i'-i.-i.  lmvr-  (!"i'ii-iti-i!  iii  thi-;  Oili- •( ,  the  title  of  a  Book,  the  right  whereof  they  claim  ;i«. 
proprietors,  in  the  words  following,  to  wit: 

u  A  Treatise  on  tlir  Principles  and  Practice  of  the  Action  of  Kjectment.  and  tip 
ing  Action  for  Mt-ne  I'rolits.     By  John  Adams,  of  the  Middle  Temple,  KM).  T);n. 
Law.    From  tliei.-ist  London  Edition.  To  which  have  been  carefully  noted,  it 
the  Supreme  Court  of  New  Vorlt,  from  January  Terra,  1799,  to  October  Term.  l':J<>,  wilt- 
references  to  the  decisions  in  the  Courts  of  Massachusetts  and  Pennsylvania,  and  the  Su 
prcmc  Court  of  the  United  States.     By  Philo  Ruggles,  Esq.  Counsellor  at  Law.'' 

In  conformity  to  the  Act  of  Congress  of  the  United  States,  entitled,  "  An  Act  for  Um 

encouragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and  books,  to  the 
"authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned;"  And  also, 
to  an  Act,  entitled, "  An  Act,  supplementary  to  an  Act,  entitled,  an  Act  for  the  encou- 
'•  ragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and  books,  to  the  authors 
••..in!  pr n;Tiftivrs  nf  such  copies,  (luring  the  times  therein  mentioned,  and  extending  tin- 
••bcnehts  tbvieof  to  the  arts  of  designing,  engraving,  and  etching  historical  and  other 
'•prints." 

Gf.  L.  THOMPSON, 
Clerk  of  the  Southern  District  ul  >•  v.  -A  .  . 


TO 
THE  RIGHT  HONOURABLE 

EDWARD  LORD  ELLENBOROUGH, 

LORD  CHIEF  JUSTICE  OF  ENGLAND, 
&C.  &C.  &C. 

THIS  TREATISE 

18, 

WITH  HIS  LORDSHIP'S  KIND  PERMISSION, 

MOST  RESPECTFULLY  INSCRIBED 
BY  HIS  OBLIGED  AND  OBEDIENT  SERVANT, 
THE  AUTHOR. 


74884G 


ADVERTISEMENT 

TO  THE 

SECOND  EDITION. 


IN  the  present  Edition  the  Author  has  corrected 
some  errors,  and  supplied  some  defects,  which  re- 
mained undiscovered  until  after  the  original  publica- 
tion of  the  Treatise ;  and  has,  also,  added  some  new 
matter,  which  he  trusts  will  render  the  Work  more 
complete.     The  Chapters  on  Evidence,  and  on  the 
Action  as  between  Landlord  and  Tenant,  have  been 
enlarged ;  and,  in  the  practical  part  of  the  Work,  se- 
veral manuscript  cases  have  been  introduced.     An 
alteration  has  also  been  adopted  in  the  arrangement 
of  the  Chapters;  and  at  the  suggestion  of  several 
professional  friends,  and  by  the  kind  permission  of 
Mr.  Tidd,  those  practical  forms,  to  which  the  Author 
referred  in  the  Preface  to  the  first  edition,   form  an 
Appendix  to  the  present  volume. 

10,  CROWN  OFFICE-ROW,  TEMPLE. 
May  1, 1818. 


TO 

THE  FIRST  EDITION. 


IT  has  been  the  Author's  chief  endeavour,  in  the 
following  pages,  to  investigate  the  principles  upon 
which  the  remedy  by  Ejectment  is  founded;  to  point 
out  concisely  the  different  changes  which  the  action 
has  undergone ;  and  to  give  a  full  and  useful  detail  of 
the  practical  proceedings  by  which  it  is,  at  this  time, 
conducted.  To  this  end  the  later  decisions  have  been 
very  fully  considered  ;  whilst  a  slight  mention  only 
has  been  made  of  the  more  ancient  cases,  now,  for 
the  most  part,  indirectly  overruled,  or  altogether  in- 
applicable to  the  modern  practice. 

Before  the  time  of  Lord  MANSFIELD,  indeed,  no 
regular  system  seems  to  have  been  formed  for  the 
government  of  the  action  ;  and  that  illustrious  judge, 
considering  an  Ejectment  as  a  fiction  invented  for  the 
purposes  of  individual  justice,  endeavoured  to  mould 


Vlll  PREFACE. 

it  into  an  equitable  remedy,  and  to  regulate  it  by 
maxims,  in  some  degree  independent  of  the  general 
rules  of  law,  as  well  as  of  the  practice  in  other  ac- 
tions. The  erroneous  principled  on  which  this  sys- 
tem was  founded,  were  pointed  out  by  the  late  Lord 
KENYON  ;  and  a  material  alteration,  in  the  mode  of 
conducting  the  action,  took  place  from  the  time  of  his 
Lordship's  elevation  to  the  Bench.  By  his  sound 
and  luminous  decisions,  the  remedy  has  been  placed 
upon  its  true  principles  ;  and  he  lived  to  see  a  system 
nearly  completed,  which,  uniting  the  equitable  fic- 
tions of  the  particular  action  with  the  general  prin- 
ciples of  law,  has  preserved  unbroken  the  great 
boundaries  of  our  legal  jurisprudence,  and,  at  the 
same  time,  rendered  the  remedy  most  useful  and 
comprehensive.  The  correct  principles  established 
by  this  great  lawyer  still  prevail,  having  been  uni- 
formly maintained,  and  ably  illustrated,  by  the  more 
recent  decisions  of  the  different  courts. 

The  Author  has  enlarged  upon  these  circumstances, 
in  order  to  account  for  the  personal  judgment  he  has, 
iu  some  instances,  found  it  necessary  to  exercise  with 
regard  to  decisions  anterior  to  the  time  of  Lord  KEN- 
YON  ;  many  cases  being  still  extant  as  authorities, 


PREFACE.  ix 

which  seem  wholly  inconsistent  with  the  modern 
principles  of  the  action  of  ejectment. 

The  application  of  the  remedy,  as  between  land- 
lord and  tenant,  forms  also  a  material  part  of  this 
treatise;  and  it  has  there  been  the  Author's  endea- 
vour to  give  some  useful  practical  directions  respect- 
ing notices  to  quit,  and  the  manner  of  proceeding  on 
the  forfeiture  of  a  lease,  at  the  same  time  explain- 
ing the  principles  upon  which  those  directions  are 
founded. 

The  evidence  necessary  to  support  and  defend  the 
action  in  common  cases  has  also  been  considered ; 
and  instructions  for  proceeding  according  to  the  an- 
cient practice  have  been  added,  as  far  as  can  be  ne- 
cessary at  the  present  time. 

For  practical  forms  in  ejectment,  the  Reader  is  re- 
ferred to  those  contained  in  Mr.  TIDD'S  Appendix 
to  his  Practice  of  the  Court  of  King's  Bench  :  a  col- 
lection, which  appears  to  the  Author,  too  complete 
to  require  addition,  and  too  accurate  to  be  suscepti- 
ble of  improvement. 

5,  SERJEANTS'  INN, 
May  l,  1812. 


PREFACE 


THE  AMERICAN  EDITION. 


As  no  branch  of  jurisprudence  is  more  important 
than  that  portion  of  it  by  which  real  estate  is  govern- 
ed ;  so  no  legal  remedy  should  be  more  clearly  under- 
stood, than  that  by  which  the  title  to  landed  property 
is  judicially  determined.  This  remedy  is  found  in 
the  modern  action  of  Ejectment,  the  essential  features 
of  which,  as  established  by  the  British  tribunals, 
have  been  adopted  by  the  Courts  of  New-York,  with 
less  variation  than  in  any  other  state  in  the  Union. 
There  being  no  work  upon  the  subject  exclusively 
American,  a  well  written  English  treatise  has,  there- 
fore, become  indispensable.  As  a  summary  of  the 
principles  and  practice  that  regulate  the  British 
courts,  the  English  edition  of  the  present  work  will 
unquestionably  be  found  of  great  value  ;  and  for  con- 
ciseness and  perspicuity  it  appears,  upon  a  compari- 
son with  the  latest  and  most  approved  edition  of  Mr. 
Runnington's  treatise,  to  merit  a  decided  preference. 
Still  the  work  to  the  American  practitioner,  is  in- 
complete, without  a  reference  to  our  own  adjudged 
cases,  and  the  rules  established  in  our  own  courts. 
The  Reports  of  the  Supreme  Court  of  the  State  of 


All  PREFACE. 

New- York  have  been  enriched,  during  the  last  twen- 
ty years,  by  the  learning  and  talents  of  distinguished 
jurists,  by  whose  labours  the  English  system  of  law 
has  been  ably  illustrated  and  adapted  to  the  policy 
and  genius  of  our  government  and  institutions.  The 
volumes  containing  their  valuable  decisions  are,  how- 
ever, so  numerous,  that  a  ready  reference  to  them 
(and  especially  at  circuits)  has  become  impossible.  To 
remedy  this  inconvenience,  as  far  as  relates  to  the 
law  of  Ejectment,  the  present  notes  have  been  added, 
in  compiling  which,  reference  has  also  been  had  to 
the  decisions  of  the  Supreme  Courts  of  Massachu- 
setts, Pennsylvania,  and  the  United  States.  The 
reports  have  been  examined  with  care  and  attention, 
and  the  principles  which  they  contain  have  been  ar- 
ranged in  the  order  laid  down  in  the  text,  and  in  a 
manner  calculated  to  render  a  reference  to  the  origi- 
nal decisions  easy  and  convenient.  The  object  of 
the  compilation  will  be  fully  attained,  and  the  Editor 
will  feel  himself  amply  repaid,  if  by  the  notes  to 
this  treatise  the  labours  of  the  practitioner  are  light- 
ened, and  the  researches  of  the  student  facilitated. 
March  \5th,  1821. 


CONTENTS. 


CHAPTER  I. 

OF  THE  ORIGIN— PROGRESS— AND  NATURE  OF   THE  ACTION 
OF  EJECTMENT. 

Definition  of  the  action  ....  1 

Its  origin  ...  7 

History  of  its  ancient  practice  .  10 

modern  practice  .  .13 

CHAPTER  H. 

OF  WHAT  THINGS  AN  EJECTMENT  WILL  LIE,  AND  HOW  THEY 
ARE  TO  BE  DESCRIBED. 

Of  what  things  an  ejectment  will  lie        .  .  .         16 

How  they  are  to  be  described  .  .  .20 

CHAPTER  HI. 

6F    THE    TITLE    NECESSARY    TO   SUPPORT   THE  ACTION  OF 
EJECTMENT. 

Of  the  general  requisites  of  title  .  .  .32 

Of  discontinuance  .  .  .  .  .34 

Of  descent  cast  .  ....         40 

Of  the  statute  of  limitations         .  .  .  .46 

Of  the  persons  who  by  reason  of  their  several  titles  may 

maintain  ejectment  .  .  .61 

Tenant  lor  years,  for  life,  in  tail,  in  fee  .        61 


\M  <  OVfENTS. 

Page 

Mortgagee           ....  62 

Lord  of  a  manor              .  «         63 

Copyholder          .             .             .             .  .65 

Lessee  of  a  copyholder                .            .  .67 

Widow  for  her  free  bench              .             :  .67 

Guardian             .            .             .            .  .68 

Infant      ......        69 

Assignee  of  a  bankrupt                .            .  .69 

Conusee  of  a  statute  merchant,  or  staple  .        70 

Tenant  by  elegit               .             .             .  .70 

Personal  representative                .            .  .72 

Devisee                .            .            .            .  .73 

Grantee  of  a  rent-charge               .             .  .73 

Assignee  of  the  reversion              .             .  .74 

Adverse  possessor  for  twenty  years          .  .         76 

Corporation         .             .              .              .  .79 

Rector  or  vicar                 .             .             .  .80 

Trustees  .....         80 

Joint-tenant,  &c.               .             .             .  .88 

Lunatic                .             .             .             .  .88 

Person  claiming  under  an  award               .  .         89 

CHAPTER  IV. 

OF  THE  CASES   WHICH    REQUIRE    AN   ACTUAL   ENTRY   UPON 
THE  LAND  BEFORE  EJECTMENT  BROUGHT. 

In  what  cases  an  entry  must  be  made     .            .  .90 

By  whom  the  entry  must  be  made             .             .  .96 

Mode  of  making  the  entry           .  .97 

CHAPTER  V. 

OF  THE  ACTION  OF  EJECTMENT  AS  BETWEEN  LANDLORD 
AND  TENANT. 

Of  the  notice  to  quit, 

Origin  and  history  of           .            .            .  .102 


CONTENTS.  Xlii 

Page 

Of  the  notice  to  quit, 

When  necessary,  and  when  not        .  .  .105 

By  whom,  and  to  whom  to  be  given  .  .       120 

Service  of  ...  .124 

Form  of      ...  124 

Period  of  its  expiration         ....       128 
How  waived  ...  .       139 

Of  provisoes,  &c.  in  leases  for  re-entry, 

Origin  and  history  of  ...       145 

\Vhatcovenantsarevalid  .  .  .       147 

Proceedings  on,  for  rent  in  arrear  .  .  .148 

Covenants,  how  broken        ....       162 
Conditions,  how  dispensed  with         .  .  .       171 

Who  may  bring  ejectment  on  .  .  .       171 

How  waived  .....       173 

teriod  of  their  operation      ....       175 

CHAPTER  VI. 

OF  THE  CASES  IN  WHICH  THE  ANCIENT  PRACTICE   IS   STILL 
NECESSARY. 

On  a  vacant  possession  .       177 

In  an  inferior  court          .  .  .  .  1 77 

How  to  proceed  .  .  1 78 

CHAPTER  VII. 

OF  THE  DECLARATION  IN  THE  MODERN  ACTION  OF  EJECT- 
MENT, AND  NOTICE  TO  APPEAR. 

Of  the  declaration, 

How  entitled            .  .             .             .             .180 

Venue          .             .  .             .             .             .186 

Demise       .            .  .             .             .            .186 

Entry          .  .             .       198 
Ouster         ......       198 

Of  amending  the  declaration  ....      ?00 


X1T  CONTENTS. 

Page 
Of  the  notice  to  appear  ....       205 

CHAPTER  VIII. 

OF  THE  SERVICE  OF  THE  DECLARATION,  AND  PROCEEDINGS 
TO  JUDGMENT  AGAINST  THE  CASUAL  EJECTOR,  WHEN  NO 
APPEARANCE. 

Of  the  service  of  the  declaration  ....  209 

the  affidavit  of  service  .                          .             .216 

moving  for  judgment  .             .  219 

the  time  for  appearance  ....  220 

filing  common  bail      .....  223 

signingjudgment        .  ...  224 

setting  aside  judgments  ....  226 

CHAPTER  IX. 

OF  THE  APPEARANCE— PLEA— AND  ISSUE. 

Who  may  appear  .....  227 

Of  the  consent  rule         .....  233 

consolidation  rule  ....  237 

How  to  appear  .  .  .  .  .238 

Of  the  proceedings  after  appearance        .  .  .  241 

the  plea          ......  242 

the  issue        ......  245 

CHAPTER  X. 

OF  THE  EVIDENCE  IN  THE  ACTION  OF  EJECTMENT. 

On  the  part  of  the  lessor, 

General  points  relating  to    .  .  .  .       248 

By  Heirs     .  .  .  .  .  .252 

Devisees          .....       259 

Personal  representatives  .  .  .271 

Surrenderees  of  copyhold        .  .  .      272 


CONTENTS. 

Page 

By  Lessees  of  copyholders                .             .             .  272 

Tenants  by  clajit                       •             .             .  272 

Conusees  of  statutes  merchant  and  staple         .  272 

Rectors  and  vicars                     •             .             .  273 

Guardians                     ,  274 

Assignees  of  bankrupts                          .              .  274 

Joint  tenants,  &c.                     .                           .  275 

Landlords                    ....  277 

Assignees  of  reversion              .             .             .  283 

Mortgagees                  ....  283 

Lord  of  a  manor                        .             .              .  284 

On  the  part  of  the  defendant                   .             .             .  285 

CHAPTER  XL 

OF  THE  TRIAL  AND  SUBSEQUENT  PROCEEDINGS. 

Of  the  trial                     .....  287 

judgment                     ....  294 

costs                .....  300 

execution                       ....  305 
writ  of  error                  .              .             .              .312 
bringing  a  second  ejectment             .              ..            .315 

CHAPTER  XII. 

OF  STAYING  THE  PROCEEDINGS  IN  THE  ACTION  OF 
EJECTMENT. 

Until  particulars  of  breaches  be  given                  .             .  317 

security  he  given  for  costs            .              ..             .  317 

costs  of  a  former  ejectment  be  paid          .             .  319 

When  two  actions  are  depending  for  same  premises        .  323 

Upon  Stat.  7  Geo.  II.  c.  20                                   .             .  324 

Stat.  4  Geo.  II.  c.  23                 .                         .  327 


JCV11I  CONTENTS. 

CHAPTER  XIII. 

OF  THE  ACTION  FOR  MESNE  PROFITS. 

Page 

Origin  and  nature  of  ....       328 

By  whom  to  be  brought  ....       330 

Against  whom                 .  .             .             .             .331 

,Of  the  pleadings              .  .             .             .             .       332 

evidence  .       334 

damages          .  ...       338 

costs                 .  .             .             .             .339 

APPENDIX  OF  FORMS       .  .  .  .341 

INDEX  383 


TABLE 


or 


CASES    CITED. 


A. 

ABLETT  v.  Skinner 

Adams,  Fitchet  v. 

— — —  v.  Goose 

Addy  v.  Grix 

Aislin  v.  Parkin       189-  I 

Alexander,  Doe,  d.  Schofield  t;.  155 


*,  v.  Gibson 


Allen,  Doe,  d.  Shephard,  v. 

—174 
•  '  •    -  v.  Foreman 

v.  Rivington 

,  Harris  ». 

Alker,  Goodtiile,  d.  Chester 

I 

Alston,  Doe,  d.  Selby  o. 
Andrews,  VVhittingham  v. 
Angel,  Keene,  d.  \ngel  v. 
Anon.  (3  Leon.  210) 

(2  Dal.  95) 

(Skin.  412) 

(1  Vent.  248) 

(6  Mod.  222) 

(1  Mod.  3r>) 

II  Mod.  3/>4) 
'12  Mod.  313) 

(12  Mod.  21    )  j:< 

(1  Wils.  130} 


Page 

Page 

li-8 

Anon.  (Salk.  257) 

202 

07 

/'Cn||c     «<•,«>>                    <?1O 

39D 

yi 

199 

f  Sa|L     9fin  "\                   1  fi  1 

OtCv 

330 

261 

/  I?  *»  !••    n  r*rl        ^2O/\\ 

218 

334. 

(Ld  Raym.  72t  ) 

291 

.155 

(Yelv.  166) 

297 

2*9 

f  2  Brown.  2.r>S) 

310 

10: 

(  1     1?MAAM*       OTQ\ 

305 

(2  Sid    155) 

1OA 

180 

(l  Cowp.  128) 

ouv 
318 

31 

(Dyer  H6) 

26 

329 

(M.  T.  1817) 

207 

\ 

Anstey  v.  Dowsing, 

266 

j.97 

Archer,  Lamb  v. 

228 

318 

d     ll'tuLf  v  tf    Snftnn 

326 

,    II*    1  1  <1  1  1  K  1  ^     f  .  .    .   lla^'J 

26 

Argoll  v.  Cheney 

13 

320 

A-h,  Felton  » 

327 

24 

\sliburner,  Roe,  d.  Jackson  o. 

111 

20 

Ashworth  v.  Stanley 

22 

98 

\-kow,  Carey  v. 

270 

1  1 

Vllierly,  Doe.  d.  Hamilton  r. 

319 

186 

Atkin.s  r  Hat  ton 

273 

836 

\tkinM»n.  (irviyson  p. 

262 

252 

Atiorncy  (i^neral  c.  Barnes 

26S 

213 

Audli-v'*  (  ';«>^ 

s-7 

,228 

F   Holhird 

97 

318 

Austinc  r.  Hood 

Sit) 

TABLE  OF  CASES  CITED. 


Awder  v.  Nokes 
Ajlott,  Cole  v. 


Page 
76 
25 


B. 


Badtitle,  Goodtitle,  d.  Price  v.  185 

, ,  d.  Read  v.  21 1 

, ,  d  Richmond, 

Duke  of,  v.  222 

, ,  d.  Roberts  v. 

213 

,  d.  Wanklen  v. 

217 

— ,  d.  Gardner  v. 
210 
240.  242 

,  Goodriglit  d.  Ward  v. 

245 

Badger  v.  Floyd  315 

Badraering.  Pike  v.  26  • 

Bagshaw,  d.  Ashton  v.  Toogood 

214 

Bailey,  Tiley  r.  303 

Baker,  Wliitlock  v.  2.06 

.  v.  JMellish      86.  247.  277 

<—  v.  Roe  17 

Baldwin,  Goodtitle,  d.  Parker  v. 

7 

Ball  Partridge  v.  194 

Balwin,  Brooke,  d.  Mence  v.    307 

v.  Wine  26.  80 

Bank  of  England,  Glynn  v.       273 


Barnes  v.  Peterson 
Barrett,  Smith  v. 
Barber,  Doe,  d.  Crisp  v. 
Barclay,  Doe  d.  Church/1. 
Bartlet,  Howard  v. 
Barry,  Morris  o. 
-,  Morres  v. 


22 
17 
31 
322 
68 
187 
295 
314 

76.  172 
316 


Barnes  v.  Bulmer 
Barton,  Threr  v. 
Barefoot  v.  Fry 
Barnardiston,  Smith,  d.  Ginger 

v.  305.  321 
Barker,  Omichund  r.  265 


247 
245 

3J6 


Barlow,  Highmore  v.  181 

H;i rues.  Attorney  General  v.    23 
llaiiicv.  Sim-   or  v.  76 

Barnaby,  Turner  v.  289-  3<»i 

Barwick,  d.  Mayor  of  Rich- 
mond r     I  !i"in|.  <>n 
Bass  v.  Bradford 
Bath  (Esirl  of)  v.   Shenvin 
Batten,    Doe,   d.    Cheney    r. 

140.  144    l6l.  3,29 
Bawden,   Right   d.   Dean  of 

Wells,  v.  118 

Baxter,  d    Abrahall  v   Brown  I'O 

,  Earl  d.  Goodwin  r.          2t'3 

Bayliss,  Doe,  d  Morland.  v. 

211.  218 

Beard,  Right  d.  Lewis  v.  104.  116 
Beaurhamp  v.  Burt  179 

Beauclerk.  Kenrirk  v.  81,  85 

Beck,  d.  H.twkins  v.  Welsh        69 
Bedfll  v   Constable  68 

Bed  well,  Thrustout  v.        289.  301 

—304 
Belcher,  Thunder  d.  Weaver  ?>. 

(  2   104.  107.  284 
Bell,  Doe  d.  Rigge  r.        !•'  4.  108 
134.  164 
v.  Harwood  251 


Bellamy,  Doe,  d.  Burrell  v 

67-  68.  257 

Bentley  v.  Poole  112 
,  Throgmorton,  d.  Fair- 
fax v.  289 
Bennington  v .  Goodtitle  22 
Benion,  Legg,  d.  Scot  r.  117.  125 
Benson,  Pleasant,d.  Hayton  v.  123 
Benn,  d-  Mortimer  v.  Denn  322 
Bengo,  Sleabourne  v.  2y6 
Bent,  Worrall  r.  296 
Berkley,  Peerage  Case  256 
Berrington,  d.  Dormer  v.  Park- 
hurst  91.99.191 
Berney,  Stocker  v.  76 
Bery,  Rex  v.  186 
Bettison,  d.  Howe  v.  Bromley  267 
Bethill,  Floyd  ».  SOB 


TABLE  OF  CASES  CITED. 


xxi 


Page 

Uevan,  Doe,  d.  Goodbehere  v.  16  > 
Biggs,  Doe.  d.  Leicester  v. 

81.  84  111 

Bimlover  v.  Sindercombe  21.  24 
Bingham.  d.  Lane  v.  Gregg  326 
Birch  v.  Wright  106,107.  1  £8 

144.  2b4.  o2y 
Bird,  Doe.d.  Hellings  v.  5b 

».  Snell  1»2 

Birkbeck  r.  Hughes  218 

Bissel,  Morgan, d.  Dowdings  v.  1 1 J 
Blades.  Harrison  v.  256 

Blakey,  Clayton  v.    104.  108.  117 

—  164 

Blackman,  Goodwin  ».  196.  198 
Blackham,  ."  mith  v.  252 

Bliss,  Doe,d.  Boscawen  v.  174 
Bluck,  Doe,  d-  Morgan  o.  306 
Bodily,  Grumble  v.  324 

Bener  v.  Juner  187 

Bond  v.  Seawell  26 1 

Bourne,  Hunt  ».  94,  95 

v.  Turner  250 

Bouehier  v.  Friend  223 

Bradford,  Bass  v.  2  .5 

Braham,  Goodtitle,d  Revettt?.  29 
Breach,  Doe,  d.  Oldershaw  v.  171 
Brewer,  d.  Lord  Onslow  ». 

Eaton  161 

,  Dor,  d.  Byne  v.  181.  246 

Brewster,  Hillintrsworth  v.  16.  23? 

,  Medliclot  v.  l>37 

Brend,  Tunstal  v.  185 

Britrhtwen,  Doe,  d.  Milner  v.  5 } 
Brittle  r.  Dade  214 

Brice  v.  Smitli 

Brickhurst,  Kamsbottom  v.  '2f'2 
Brills.  Hunter  v.  037 
Bristow  (Mayor  of,)  Rex  v.  -  177 
Brown's  Case  4  . 
,  Doe,d.  Warner  v. 

103,  104.  lf>8 

,  Holmes,  d.  Brown  /-. 

,  Baxter,  d.  Abraliall  v.  110 

Brooke,  d.  Mence  v.  Baldwin  307 

15roc!ei  ick  w.  Broderick 

Bromley,  Bcttison,  d.  Howe  P.  267 


Page 

Broughton  ».  Langley  81 

Br\an,  d.  Child  v    \\inwood       63 
Brydon,  Gates,  d.  Wicfall  v 

33.  92  236 

Buckley  v.  BurkU-y  '223 

Bugby,  Crusoe,  d.  Blencoweo.  163 
Btilmer,  Barnes  r.  314 

Burbury  ?'.  Yeomans  23 

Burchrlt  v  Durdant  81 

15m  j  hers  oi  Carmarthen, Rex».  292 
Burght-rs,  Grimstone,  d.  Lord 

Gower  v.  237 

Burnr  v   Richardson  331 

Burt,  Beauchamp  v.  179 

Bury,  Phillips  u.  24S 

Butcher,  Doe,  d.  Taggart  v. 

302.  311 

c. 

Calvert,  Doe,  d.  Ash  v.     140.  269 

281 

v    Horsefall  336 

Calcraft,  Wadman  v.  158 

Camell  v.  Clavering  80 

Capel  r.  Saltonstall  204 

Carleton,  d.  Griffin  v.  Griffin    263 
Carlwright,  d.  Demi,  Jacklin  r. 

128 
Carter,  Doe,  d.  Mitchinson  v.  1(>6 

v.  Cromwell  195 

Carey  v.  Askew  270 

Casson  t).  Dade  265 

Cator,  Goodrijjht,  <1.  Hare  v. 

61.  90.92.  100.  146 
Challenor  v.  Thomaj  18 

Cbapmaii  «.  Sharpe  68 

Chaworlli  r.  Phillips  76 

(  harnock,  Roe,  d.  Henderson  v. 

('hater  v.  Hawkins  265 

Chalkhill,  Kden  r.  269 

Chaplin,  Radcliffe  v.  258 

Cheney,  Argoll  v.  13 

Checy,  Peto  v.  181 
Chetwynd,  Wyndham  v. 


XXM 


TABLE  OF  CASES  CITED. 


Page 

Church,  Doe,  d.  Morgan  0.     128 
Clavering,  Caraell  o.  80 

Clarke,  Kinaston  v.  27-i 

-  v.  Phillips  99 

-  ,  Doe  d.  Grundy  v. 

34.  80.  191 

-  ,  Doe  d.  Lock  wood  v.  167 
Clare,  Doe,  d.  Coore  v.  Ill 
Clayton  v.  Blakey     104.  108.  117 

—164 

Clayton's  case  200 

Clapham,  Holdfast,  d.  Woollams 
v.  66.  257 

Claxmore  v.  Serle  290 

Cleabourne,  Jordan  v.  24 

Clements,  Doe,  d.  Folkes  u.       64 


192 


Clerke  ».  Rowell 

,  Linsey  v. 
Close's  case 
Clyraer  v.  Littler 
Cocks  v.  Darson 
Cocke,  Sherman  v. 
Cole  v.  Aylott 

-  ,  Taylor  v. 

-  ,  Wade  v. 

-  ,  Small,  d.  Baker  v.  291 
Colley,  Wilkinson  v. 
Comyn  v.  Kineto 

-  ,  v.  Wheatley 

-  ,  St.  John  »'. 
Coningsby,  Lord's  case 
Constable,Bedell  v. 
Connor  v  West 
Cooke,  Higham  o. 

-  ,  Roberts  v. 
Cooper,  Doe,  d.  Tilyard  v. 
Cope,  Glovef  v. 


294 
298 
330 
294 

88 
177 

25 

70 

68 
297 
121 
•  17 

17 

21,  22 
29  < 

68 

21.25 
200 
320 
231 

76 


Copeland,  Doe,  d.  Palmerstone  r. 

289 

Coplestone  v.  Piper  2ij 

Copous,Oakapple,  d.  Green  v.  280 
Cordwent,  Goodright,  d.  Charter 

t>.  140 

Cottingham  f.  King     21,22.196 
Cowley,  Jemott  ».  73 

Crabb,  Smith  v.  237 

Creach  ».  VVilmot  53 


Page 
Crick,  Doe,  d.  Lord  Macartney 

0.  123.  125 
Cromwell's  case  38 

Crouch,  Doe,  d.  Jones  ».          169 
Croker,  Evans  p.  200 

Croker,  Stephens  ».  200 

Croft  v  Pawlet  265.  268 

Cromwell,  Carter  v.  195 

Crusoe.d.  Blenrowen  v.  Bugby  163 
Cuff,  Doe.  d.  White  P.  276 

Cuthell,  Right,  d.  Fisher  v. 

120.  279 
Cutts,  Jenny,  d.  Preston  v. 

211.  218,219 
Cutting  v.  Derby  330 


D. 


Darres'  case 
Dade,  Brittle  v. 
,  Casson  o. 


Dale,  Smales  v. 
Hooper  ». 


Danvers  v.  Wellington 
,  Doe,  d.  Cook  v. 


23,24 
244 
265 

55.  96 

181 

23 

41.52 
270 


Dancaster,  Lovelock,  d.  Norris 

v.  230,  231 
Darby,  Right,  d.  F  lower  . 

130,  131.  134 

Darson,  Cocks  ».  88 

Davids,  Goodright.  d.  Walter  v. 

173 

Davy  v.  Smith  284 

Davenport  v.  Tyrrell  57 

Davis,  Goodtille  v.  218 

,  Martin  v.  233 

v.  Moggridge  333 

v.  Pierce  248 

v.  Doe  225.  302.  333 

338 

,  Roe,  d.  West  ».  149-   154 

155,  1.^6.  277-  282 

,  Doe,  d    Challnor  v.       53 

.  d.  Povey  c.  Doe          310 

Davis,  r.  Purdy  199 


TABLE  OF  CASES  CITED. 


XXUl 


Page 

Dawson.  HOP.  d.  Saul  r.  307 

Dcardon,  Kceue,  d.  Byron  v. 

.VJ.  82.87-  314 

Dean,  Fenn.  (I.  Knit- lit  p.  214 
Demon,  DOP,  d.  Stewart  P.  23 
Denn  P.  Spurrier  I  !' 

Denn,  d.  Brune  v.  Rawlins       104. 
108    118 

,  d.  Burgis  v.  Purvis          197 

,  d.  Goodwin  i\  Spray       2.">8 

,  d.  JackliH  v.  Cartwright  128 


-.  d.  Lucas  v.  Fullbrd 


318 
244 
337 
299 
322 
215 


Denn,  d.  Wroot  v.  Fenn 

v.  White 

— — ,  Far  v. 

,  Benn,  d.  Mortimer  P. 

,  Fenn,  d.  Tyrrell  y. 

Dent,  Savage  v.        177-  183.  210 
Denre  v.  Doble  320 

Derby,  Cutting  v.  330 

Derrett    Kemp  P.  132,133 

Deveretix  v   Underbill  310 

Dillon  v.  Fraine  85 

Dinely,  Doe,  d.  Messiter  v.      314 

,  Hand  v.  327 

Dobbs  v.  Passer  225.  239 

Dobson,  Hob-on,d.  Bigland  v.  238 

Doble,  Dence  v.  320 

Doe,  d.  Ash,  v.  Calvert  140.  29. 

—281 

,  d    Banning,  v  Griffin      257 

,  d.  Bass,  v.  Hoe  208 

,  d.  Baddam.  r.  Roe          21  I 

,  d    Bailey,  p    Roe  212 

.  d.  Bakrr.  r   Woombwell  281 

,  d.  Barnett  v.  Keene  65 

,  d.  Bedford,  (Duke  of,) 

V.  Kightley  J27 

,  d.  ,  v.  Kendrirk  135 

,  d.  Bennington,  v.  Hall 

66.  270 

,  d.  Beyer,  v   Roe  3 1 2 

,  d.  Bird.  v.  Roe  207 

,  d    Bi<h.  c    keeling          H!l< 

,  d    Blake.  ».  Luxton  32 

,  d.  Bo.-cawen,  v.  Bliss      174 
1 ,  d.  Rradshaw, ».  Plowman  22 


Page 
Doe,  d.  Bradford,  v.  Watkins 

123.  138 

,  d.  Bristow,  v,  Pepge          33 

1  d. ,  v.  Old,  175 

,  d.  Brierly.  v.  Palmer       142 

,  d.  Bromueld,  v.  Smith 

1  11. 119 

,  d.  Brown,  P.  Wilkinson   131 

,  d.  lirune,  ».  Piideaux 

108.  118 

,  d.  Bryant,  v.  Whippel    188 

,  d.  Burrcll,  ».  Perkins        95 

,  d.  ,  0.  Bellamy 

67,  68.  257 

,  d.  Burrow,  v.  Reade         78 

,  d.  Byne,  v.  Brewer  181.  246 

,  d.  Carlisle  (Larl  of,)  v. 

Woodman  124 
,  d.  Castleton,  ».  Samuel 

134.  281 
,  d.  Chadwick,  v.  Law 

320.  323 
-,  d.  Challnor,  r.  Davies      53 


,  d.  Chaplin,  v    Whayman 

120 

,  d.   Cheney,  v.   Batten 

140.  144.  I6l.  329 

,  d.  Church,  v.  Barclay 

.     ,  d    Claikr,  v.  Roe 
,  d. ,  v.  Grnnt 


-,  d  Clarges,  v   Forster 
-,  d    Cohbey,  v.  Roe 


322 
207 
276 
280 
201 
—  ,  d.  Colclough,  ».  Mulliner  53 

,  d    Collins,  ».  Weller       134 

,  d   Coore,  ».  Clare  111 

,d  Compere,p.  Hicks,  93.335 

,  d.  Cook,  v.  Danvers  41.  52. 

—270 

,  d.  Cox,  v 127 

,  d.  Trisp,  ».  Barber  31 

,  d.  Da  Costa. »»  Wharton 

32  6J.  66.  72.  272 

.,  d  Dagget,  P.  Snowdon    137 

,  d    ENgby,  v.  Steel    141.  271 

,  d.  Dry,  p.  Roe  214 

,  d-  Ducket,  P.  Watts    92.  96 

,  d.  Duroure,  v.  Jones         59 


xxiv 


TABLE  OF  CASES  CITED. 


Doe,  d.  Esdaile,  r.  Mitchell      1    0 

.d    Kvre.  r.  Lamhly  280 

.  d    Feldon,  v    Roe  320 

.  d    Fishar,  r.  Prosser         56 

,  d.  Foley,  v.  Wilson  65.  104. 

—284 

•  „  d.  Folkes,  v.  Clements      64 

,  d.  Forster,  v.  Wandlass 

155   307 

,  d   ,  v.  Williams  2  <> 

,  d    Foxlow.  v  Jeffries      204 

,  d.  George,  v.  Jesson  60.  257 

,  d.  Gibbons,  v   Pott  33 

,  d   Gill,  v.  Pearson    97-  1«7 

,  d.  Ginger,  v   Roe  236 

,  d    Godsell.  t;.  Inglis        141 

,  d.  Goodbehere,  v.  Bevan  166 

,  d.  Graham,  v.  Scott  87 

,  d.  Grundy,  ».   Clarke 

34.  80.  191 
,  d.  Grocers'  Company, 

v.  Roe  225 

,  d.  Hallen,  v.  Ironmonger  81 

,  d.  Hamilton,  v.  Atherley  3J9 

,  d. ,  i'.  Hallierley  320 

,  d.  Hanson,  v.  Smith        2?0 

,  d.  Hardman,  v.  Pilkington 

202 

,  d.  Harvey,  v.  Roe  214 

3  d.  Hanvood,  v.  Lippencott 

232 

,  d   Hayne,  v.  Red  fern        80 

,  d    Heapy,  v.  Howard      139 

,  d.  Heblethwaite,  i'.  Roe  231 

,  d.  Hellings,  v.  Bird  5<; 

,  d.  Hind/,  r.  Vince  127.  136 

,  d.  Hindly,  v.  Rickarby    283 

,  d.  Hitclnngs,  v.  Lewis 

15D,  16 

,  d.  Hodson,  v.  Staple  32.  87 

,  d.  Holcomb.  v.  Johnson  135 

,  d.  Hollingsworth,  v.  Sten- 

nett  104    117 

,  d.  Holland,  v.  Worslty   164 

,  d.  Jones,  v.  Crouch          16[) 

9  d. ,  v.  W  flde        250 


Page 

Doe,  d.  Johnson,  v.  Lord  Pem- 
broke 256 

,  d.   Knight,  v.  Quigley 

104.  117 

.  d. ,  0.  Lady  Smith  232 

.  d.  Leeson,  v   Sayer  104.  1 JG 
,  d    Ledger,  v.  Roe  225 

,  d.  Leicester,  »,  Biggs  81. 
84.  114 

,  d.  Leppingwell,  ».  Trussell 

305 
,  d.  Lintot,  v  Ford  304 


,  d.  Lockwood,  v  Clarke   167 

— — ,  d.  Lock,  p.  Franklin       233 
,  d.  Lulham,t>    Fenn          187 


,  d.  Macartney,  Lord,  v. 

Crick  123,  124 

,  d.  Martin  v.  Watts  108 

,  d.  Marsack,  r.  Read  121 

187.275 

,  d.  Mason,  v.  Mason  258 

-i ,  d.  Matthewson,  v.  Wright- 

mnn  125,  126 

,  d  Mayhew,  v.  Erlam  326 

,  d  Mrs-siter,  r.  Dinely  314 

,  d  Milner,  ».  Brightvven  51 

,  d.  Milnes,  v.  Lamb  2JJ2 

,  d.  Miller,  r.  Noden  114 

,  d.  Mitchell,  v.  Levi  U.J 


,  d.  Mitchinson,  v.  Carter  166 

,  d.  Morris,  v    Rosser  89 

,  d.  Morgan,  v   Church     128 

1  <\. ,  v.  Biuck        306 

,  d.  Morland,  v.  Baslis  x.11 

—218 

,  d  Morton  v.  Roe  243 

,  d.  Neale,  v.  Roe  214 

.  d    Odiarne,  v.  White- 
head  36  93 

.  d  ()ldershaw,».  Breach  171 

,  d.  O'Connel.  ».  Porch     20» 

.  d    Prdmerston,  Lord,  v. 

Copeland  289 

,  d.  Parry,  »'.  Hod<on          68 

,  d    Parry,  v.  Hazell          131 

,  d.  Patej  <?.  Koe,  311 


TABLE  OF  CASES  CITED. 


XXV 


Page 
Doe,  d.  Peacock,  v.  Raffan       134 

,  d.  Pearson,  v.  Roe          222 

,  d.  Pinchard,  v.  Roe        322 

,  d.  Pitcher,  w.  Donovan   132 

,  d.  Pitt,  v.  Laming  165.  169 

,  d.  — ,  v.  Sherwin  168 

,  d   Powell,  v.  King  277-  -  82 

,  d.  Prior,  ».  Salter  303 

,  d  Puddicombe, w.Harris 281 

,  d.  Qnintin,  v.  Roe  217 

,  d.  Rigge,  t>.  Bell      104.  108 

134.  164.  274 

,  d.  Rum  ford,  v.  Miller     203 

,  d.  Rnst.p.  Roe  244 

,  d.  Lord  Say  &  Sele,  v. 

Guy  73 
,  d.  Schofield,  v.  Alexan- 
der                                    155 
,  d    Shephard,  v.  Allen  107 

— 1.0 

,  d.  Selby,  y.  Alston          318 

,  d.  Shore,  v.  Porter    72.  1 19 

—192 

,  d.  Smith,  v.  Smith  271 

,  d.  Smelt,  v.  Fuchau        282 

,  d.  Spencer,  v.  Godwin     170 

,  d.  Spicer,  v.  Lea  126.  133. 

—136 
,  d.  Stewart,  r.  Denton       23 

,  d.  Strickland,  v.  Spence  136 

—138 
,  d.  Taggart,  v.  Butcher  302 

—311 
,  d.  Tarrant,  p.  Hellier     64. 

—257.  285 

,  d.  Tilyard,  c.  Cooper     231 

,  d.  Toilet,  ».  Salter          197 

,  d.  Troughton,  v.  Roe     225 

—238 

,  d.  Tubb,  v.  Roe  325 

,  d.  Vernon,p.  Vernon  67.  270 

,  d.  Vine,  ».  Figgins         189 

,  d.  Wad  more, »  Selwyn  135 

,  d  Walker,  v.  Stephenson  270 

—319 
,  d. .  r.  Groves      113 


Page 
Doe,  d.  Warry,  r.  Miller  66 

,  d.  Warner,  v.  Browne  103. 

104   108    117 

d.  Whatley,  v.  Telling  191 
d.  White,  v.  Cuff  276 

d.  WhitftVld,*.  Roe  154.  21 7 
d.  Wilson  v  Roe  212  218 
d.  Williams, r.  Pasquali  119 

d. ,  v.  Humphreys  141 

d.  Wright  0.  Roe  215 

Davis,  d  Povey,  v.  310 
Roe,d.Cholmondley  v  292 

,  d   Cook,  v  238 

-,  d.  Hambrook,  v.  212 


-218 

,  d.  Humphries,  r.  312 

,  d    Hyde,  v.  240 

.  d    Leak,  v.  229 

,  d    Stephenson,  ».  2    1 

Tupper,  d.  Mercer,  v.     213 
Davies,  ».      225.  3U2.  333. 
3S8 

v.  Reynolds  315 

v.  Roe  311 

—     v   Spiller  125 

Donovan,  Doe,  d.  Pitcher,  v.  132 
Donford  »    Ellis  329 

Dormer  v.  Fortescue  335 

Dose,  Lushington,  d.  Godfrey, 

v.  314 

Douglas  v.  Shank  198 

v 214 

Downintrham's  case  65 
Dowsing,  Ansty  ».                     266 
Driver,  d.  Sr  ration, ».  Scratton  202 
,  d.  Oxendon,  c.  Law- 
rence                          230.  247 
Drinkwater,  Gulliver  v.    333.  338 
Drury  v.  Fitch  88 
Duckworth,  d.  Tubly,  r.  Tun- 
stall                                    158 
Dumpor's  case                          171 

o.  Syms  172 

Dunch,  Sprightley,   d.    Col- 
lins, v.  214 
Durant,  Potts  r.  278 


\.XVI 


TABLE  OF  CASES  CITED 


Durdant,  Burchett  v. 
Dyson,  Jeffries  r. 

E. 


Page 

81 

330.  334 


Earl  v.  Lewis  273 

,  d.  Godwin,  y.  Baxter      283 

Eaton,  Brewer,  d  Lord  Ons- 


low,  v. 
Eastcourt  v   Weeks 
Eccleston  v.  Petty 

Rov«ton  P. 


161 
65 
265 

20.  23,  2  « 
26') 
27 
164 


Eden  v  Chalk  11 

Edmunds,  Nash  v. 

Edwards,  Palmer  v. 

Elden  v.  Keddell  271 

Eliott  Stephens  v.  6.*» 

Elliot,  Roe,  d.  Truscott  v.          96 

Ellis,  Donford  v.  32>' 

,  Roe,  d  Lee  v.  204 

v.  Smith  261,  262 

England,  d.  Syburn,  v.  Slade    32. 
87.  247 

Erith.  Inhabitants  of,  Rex  v.    2  6 
Eriswell,  Inhabitants  of,  Rex 

v.  255 

Erlara,  Doe,  d.  Mayhew  v.       32 
Evans  ».  Crocker  200 

Evans,  Smith  v.  26l 

Evelyn,  Stonehouse  v.  26 

Eves,  Rumney  v.  25 

F. 

Fabrigas,  Mostyn  v.  186 

Fagg  v.  Roberts  2y6 

Fairclaim,  d.  Fowler,  v.  Sham- 
title  12.  229,  230.  232 

,  d.  Empson,v.  Shack- 

leton  56 

Farmer,  d.  Miles,  v.  Thrust- 
out  214 
Far  ».  Denn  299 
Fawson,  Goodright,  d.  Grif- 

fen  r.  196 


Pa& 
Felton  v.  Ash 

Fenn,  d.  Blanchard,  v.  Wood  235 
,  d   Buckle,  ».  Roe  214 

,  d  Knight,  r.  Dean  214 
,  d  Matthews,  v.  Smart  94. 
—  172 

,  Rickattson  v.  Marriott  290. 
—306 

,  d.  Tyrrell,  v.  Denn  215 
,  d.  Wright,  v.  Johnson  259 
,  Denn,  d.  Wroot  v.  244 
-,  Doe,  d.  Lulham  v.  187 
Fenwick's  case  233 

v.  Grosvenor    232.  324 
Ferrers,  Roe,  d.  Pellat  ».  58 

189 
53 
248 


Doe,  d.  Vine  o. 
Fineux,  Hatcher  v. 
Finch,  Ivatt  v. 

Fish,  Longchamp,  d.  Good- 
fellow  v. 

Fisher  v  Hughes 
,  Kildare  ??. 


262 
296 
22 
97 
88 
23.25 


Fitrhet  v.  Adams    . 
Fitch,  Drury  v. 
Fitzgerald  v.  Marshall 
Fleetwood,  Thornby,  d.  Ha- 
milton v.  304 
Flood,  Goodright,  d.  Welch  r.  22 
Floyd,  Badger  v.  315 

'-— ,  v.  Bethill  308 

Focus  v.  Salisbury  98 

Folkard  v.  Hemet  270 

Foot,  Thrustout,  d.  Wilson  r.  301 
Ford  v  Lerke  24 

v.  Gray  55.  96 

,  Doe,  d.  Lintot  v.  304 

Foster,  Miller  v.  274 

Forrester,  Goodright,  d.  Fow- 
ler v.  94 
Forse,  Zonch,  d  Forse  v.  73 
Forster,  Doe,  d.  Clarges  v.  280 
Fortescue,  Dormer  r.  335 
Fortune  r.  Johnson  310 
Foreman,  Allen  v.  180 
Foster  v.  Pitfall  40 


Fox  v.  Swan 
,  Mason  r. 


162.  173.251 
29f- 


b  ruine,  Dillon  w.  85 

Franklin,  Doe,  d.  Lock  v.  233 

Frazer,  M'Keuire  0.  260 

Freeman,  Holdfast  v.  206 

Friend,  Bouchier  v.  22  "< 

Fryett,  d.  Harris  ».  Jeffries  174 
Fry,  Thorpe  v. 
-,  Barefoot  w. 


TABLE  OF  CASES  CITED. 

Page 


336 
3  Hi 
282 
318 
311 


Fuchau,  Doe,  d    Smelt  v. 
Fulford,  Denn,  d.  Lucas  ». 
Fi.lyara,  Molineaux  v. 
Furley,  d.  Canterbury,  Mayor 

of,  v.  Wood       127.  136.  194 
Forsden,  Moore  v.  187. 296 

G. 

Gallimore,  Moss  v.  33.  106 

Galliers,  Roe,  d.  Hunter  v.     148. 

—166 

Gardiner  v.  Norman  179 
Garrett  v.  Lister                        271 
George,  d.  Bradley,  v.  Wis- 
dom                                   31S 
Gibson,  Wither  v.  146 
,  Alexander  v.               269 
Giles,  Hill  v.  23 
Girdlestone  v.  Porter                331 
Glascock,  Shires  /•.                   264 
Glover  v.  Cope                          76 
Glynn  v.  Bank  of  England       273 
Godwin,  Doe,  d   Spencer  »».      170 
Goodright,  d.  Balsh,  ».  Rich   234 
,  d.  Charter, p.  Cord- 
went                                     140 
,  d.  Fowler,  r.  For- 
rester                                    94 

,  d.  Griffin,  v.  Faw- 

son  196 

,  d.  Hare,  »».  Cator    6l. 

90.  92. 100.  146 
,  d.  Jones,  v.  Thrust- 
out  211.318 

,d.  Peters,  v.  Vivian  l6s 

— ,  d.  Rawell, ».  Vice  301. 

—306 


XXVII 


Page 


Goodright,  d.  Russell,  v.  No- 
right  225 

,  d.  Smallwood,  v. 

Strother  26.  I9f. 

.   d.   Stevenson,  v. 

Noright  157 

,  d.  Stevens,  v.  Moss  255 

,  d.  Ward,  v.  Bad- 
title  245 

,  d.  Walter  v.  Davids  1 73 

,  d.  Welsh,  ».  Flood   22 

v.  Hart     227,  228.  310 

v.  Holton  302 

v.  Moore  327 

v.  Wood  292 

,  Moore  v.  181 

Goodtitle,  d.  Brembridge,  v. 

Walter  195.  197 

,  d.  Chester,  v.  Alker 

19.27 

,  d.  Estwick,  v.  Way  110 

,   d.   Gallaway,  v. 

Herbert  1<>4.  117.  180 

,  d.  Gardner,  v.  Bad- 
title  240 

,  d.  Jones,  v.  Jones     32. 

—87 

,  d.  Lux  more,  v.  Sa- 

ville  171 

,  d.  Massa,  v.  Thrust- 
out  212 

,  d.  Norris,  v.  Mor- 
gan 62 

,  d.  Parker,  w.  Bald- 
win 78 

,  d.  Pinsent,  v.  Laro- 

miman  196 

• ,  d.  Price,  ».  Badli- 

tlc  185 

,  d.  Read,  r.  Badti- 

tle  211 

,  d  Revett,  v.  Bra- 
ham  259 

,  d  Richmond,  Duke 

of,  v.  Badtitle  222 

— — — ,  d.  Roberts  r.  Bad- 
title  218 


XXV111 


TABLE  OF  CASES  CITED. 


Page 
Goodtitle.  d.  Taysnm,  r.  Pope  32o 
,  d.  Wanklen,  v.  Bad- 
title                                    217 
r     d  Wright,?1.  Otway  ?S 

H. 
P«gtf 

Haddock's  case                        290 
H  nli-cil  v   Wedgwood                 214 
Hall,  Keech,cL  Y\  arne  t>.  33.  «:J. 
107.  284.  331 
Hall,  Doe,  d.  Bennirigton  ».      66. 
07,1 

v.  Badtitle                240 
,  r  Da«ns                    ^ift 

.  v.  North            329.  333 
...  ..  .  t?  Tombs          330   338 

v,  Walton                     22 
—  —  —  •••        Bpnninirton  ^*             21 

v.  Hughs                           181 
Hamond  v.  Ireland                      23 
v.  Savel                         24 
Hammond  v.  Wood            70.  272 
Hancock  r.  Price                        22 
Hand  »  Dinely                          327 
Hands  v.  James                265.  268 
Harpur's  case                        16.  26 
Harvey,  Roe,  d.  Haldane  v.       29 
,  Metcalfp.                     335 
Harrison,  Roe,  d.  Gregson  v. 

•  •     Thomas  v                314 

Goodwin  v.  Longhurst         65.  67 
v  Blackman     196.  19* 
Goodgaine  v.  Wakefield          200 
Goose,  Adams  v.                      199 
Gough,d.  Calthorpe.w.Gough  2tf6 
Gowthwaite,  Hassell,  d.  Hod- 
son  v.                            74.  173 
Gray,  Ford  ».                      55.  96 

,  Thrustout,  d.  Turner  v. 


164. 172, 173 


202.  288.  318 
Grant,  Doe  d.  Clarke  v.           276 
Grayson  ».  Atkinson                262 
Greenley's  case                            38 
Green  v  Proude                         96  i 
Green's  case                               161 
Gregory  v.  Henderson                83 
Gregg,  Bingham.  d.  Lane,  w.  326 
Greensmhh,  Harding,  d.  Baker 
v.                                         318 
Gree  ».  Rolle               52.  97-  299 
Griffin,  Carlton,  d.  Griffin  v.    263 
—  —  ,  Doe,  d.  Banning,  v.     257 
Grimstone,  d.  Lord  Gower,  v. 
Burghers                           237 
Grix,  Addy  0.                           26  1 
Grills,  Hussey  v.                       259 
Groves,  Doe,  d.  Walker  v.       US 
Grosvenor,  Fenwick  ».     232.  324 
Grumble  v.  Bodilly                   324 
Gryle  v  Gryle                           262 
Gulliver  v.  Wagstaft'                217 
v.  Drinkwater      333.  338 
Guy,  Doe,  d.  Lord  Say  and 
Sele  p.                                 73 

*    Rntid                                         10- 

-  v.  Harrison                26l 
jj   Blades                    956 

Harper,  Worrall  v.                      26 
,  Jordan  v.                      305 
Harris,  Withers  v.                     311 
,  Rexo.                           310 
v.  Allrn                         329 
Doe  d   Puddicombf? 

v.                                         281 
Harding,  d.  Baker,  r.  Green- 
smith                                  218 
Hart.  Goodright  v.           228.  310 
Harbert,  Tredway  v.                319 
liar  wood,  Bell  p.                        25) 
Hart  on  v,  Harton                         82 
Harrington  ».  Wise                   109 
Hassell,  d.  Hodson,  v.  Gow- 
thwaite                       74.  173 
Hatoher  v.  Fineux                      53 
Hatton,  Atkins  v.                      273 
Hatherley,  Doe,   d.   Hamil- 
ton r.                          319,  320 
Hawkins,  Moore  v.                  246 
,  Chater  ».                   265 
Haydon,  d.  Carrol,  Vicars  v.  204 

Haulotr     Rr»r»     r\      KamfnrA   «          1  9"> 

TABLE  OF  CASES  CITED. 


XXIX 


l,  TV>e,  d.  Parry  ».  131 

Ha/.l.  wood,  d.  Price,  ».  That- 

i-lier  20? 

Ilraton.  Little  r.  146 

Hraiherly,  d.  VVorthington,  v. 

\\e>lon  187 

H,-ath,  Short  v.  33y 

Metjan  ».  Johnson  104.  117 

Hellier,  Doe,  d.  1'arrant  v.         64 

257.  2R5 

Hems  ».  Stroud  25.  274 
Hemet,  Folkard  v.  270 
Hengest,  Jones,  d.  Thomas  v.  290 
Henden,  Smartley  v.  179 
Henderson,  Gregory  v.  8 
Hersey,  Roe,  d.  Wrangham  ».  190 
Herbert  v.  Laughlyn  1U 
,  Goodtille,  d.  Gallo- 
way v.  104  117.  189 
Hicks,  Roe,  d.  Jeffreys  v.  66,  67. 
270.  284 

,  Doe,  d.  Compere  v.      93. 

—335 

High  am  v.  Cooke  200 

Higgins  v.  Highfield  3j2 

Higham  '•.  Ridgway          .      254 
H'mhmore  v   Barlow  180 

Hill  v.  Giles  2 

Milliard  v.  Jennings  266 

Hillitigsworth  v.  Brewster  16.  233 
Hind,  Seers  v.  172 

Hob-oii,  d  Bigland,?'.  Dobson  238 
Ho<  khead,  Plomer  ».  179 

Hodgson,  Doe,  d.  Parry  v.         68 
Hoet,  Joans  v. 
Hodgson,  Mason,  d.  Kendale 

v.  225.241 

Hodges,  Wilson  v.  253 

Holton,  Goodright  v.  302 

Holdmyfast,  Newman  v.     If.  296 
Holtord,  Lade  c.      •  33 

Holmes,  Poultneyu.  164 

,  Young  v.  73 

,  d.  Brown,  v.  Brown    293 

Holdfast,  d.  Hattersly,  *.  Jack- 
son 319 


Page 
Holdfast,  d.   Woollams,  ». 

Clapham  60.  257 

,  Thrustout,  d.  \V  il- 

liams  v.  320 

v  Freeman  206 

t«.  Morris  333 

Hooper  v.  Dale  181 

Hood,  Austine  ».  319 

Hopkin's  case  179 

Horde,  Taylor,  d.  Atkins  v.       40 
294.  306 

Horsfall,  Calvert  o.  336 

Howard  v.  Bai  tlett  68 

v.  Wemsley  130 

,  Doe,  d.  Heapy  v.        139 

How,  Lucas  u  75 

Hudson.  Hunt  v.  329 

Hughs,  Hall  r.  181 

Hughes,  Birkbeck  v.  218 

,  Fisher  v.  296 

Humphreys,  Doe,  d.  Williams 

v.  141 

Hunt  v.  Bourne  94,  95 

v.  Hudson  329 

Hunter  v.  Britts  33f 

Hurst,  Smith,  d.  Lord  Stour- 

ton  v.  212 

Hussey  ».  Grills  259 

Hutchinson  v.  Puller  24 

Hyde,  d.  CulliJord,  v.  Thrust- 
out  224 


I. 


Inglis,  Doe,  d.  Godsell  v.         141 
Ireland,  Hamond  r.  23 

,  Roe,  d.  Johnson  v.      285 

Ironmonger,  Doe,  d.  Hallen  ».  81 
Ivat  r.  Finch  248 


J. 

Jackson,  Odingsall  v.  25 
,  Roe,  d.  Matthews  t>.  126 


XXX 


TABLE  OF  CASES  CITL'U. 


Page 

Jackson,  Holdfast,  d.  Hatters- 
ley  v.  319 

,  Trymner  v.  262 

James.  Hands  v.  260.  268 

Jeffries,  Frvett,  d.  Harris  v.     174 

.  Doe,  d.  Foxlow  ».       204 

v.  Dyson  330.  334 

Jefts.  Taylor  ».-  210 

Jemolt  v.  Cowley  73 

Jenkins,  d.  Harris,  v.  Prit- 

chard  92. 252 

Jennings,  Milliard  v.  266 

Jenny,  d.  Preston,  v.  Cutts      211. 

218,219 

Jesson,  Doe,  d.  George  v.  60.  257 
Joans  v.  Hoel  24 

Johnson,  Doe,  d,  Holcombe 

v.  135 

,  Fenn,  d.  Wright  v.     259 

,  Rich,  d.  Cullen  v        285 


-,  Hegan  v. 
-,  Fortune  ». 
-,  Proctor  v. 


104.  117 
S10 
311 
176 
269 


Johns  v.  Whitley 

Jolliffe,  Lowe  y. 

Jones  v.  Lord  Say  and  Sele       81 

«— — ,  d.  Griffiths,  v.  Marsh     1  -24. 

177.  183 

,  Doe,  d.  Duroure  v.  59 

,  Goodtiile,  d.  Jones  v.  32.  87 

,  d  Thomas,  v.  Hengest  290 

Jordan  v.  Harper  305 

v  Cleabourne  24 

Jory  ».  Orchard  279 

Jurdan  v.  Stone  68 

Juner,  Boner  r.  187 

K. 

Keane,  d.  Byron,  v.  Deardon  52. 
82.  87.  314 

Keddell,  Elden  ».  271 

Keech,  d.  Warne,  v.  Hall  33   6?. 

107.  284.  331 

Keeling,  Doe,  d.  Bish  ».          168 


Pagt 

Keen,  Doe,  d.  Barnett  v.  55 

•    ,  Williams,  d.  Johnson 

v.  243 

,  d.  Angel,  v.  Angel         320 

Kemp  v.  Drirett  132,  133 

Kenrick  v.  Beauclerk  81 

Ken.lrick,  Doe,  d.  Bedford  v.  135 
Kesworth  v.  Thomas  202 

Knightley,  Doe,  d.  Duke  of 

Bedford  v.  127 

Kildare  v.  Fisher  22 

Kineto,  Corny n  o.  17 

King,  Cottingham  v.          21.  196 

,  Doe,  d    Powell  v    277.  282 

— ,  Short,  d   Limes  w.  214 

— ,  Short  v.  319-322 

Kingsdale  v.  Man  309,  310 

Kinaston  v.  Clarke  274 

Kirkman  v  Thomson  39 

Knight  v  Sims  24 

,  d.  Phillips,  v.  Smith      84 

Knipe  v.  Palmer  88 

Kynaston  v.  Lloyd  39 

L. 

Lade  v.  Hoi  ford  3S 

Lambley,  Doe,  d.  Eyre  v.       280 
Lamb  v.  Archer  228 

,  Doe,  d.  Milnes  r.  282 

Laming,  Doe,  d.  Pitt  v.    165.  169 
Lammiman,  Goodtiile,  d. 

Pinsent  v.  196 

Langley,  Broughton  v.  81 

Lansdowne.  Penphrase  v.         263 
Laughlyn,  Herbert  v.  18 

Lawrence,  Driver,  d.  Oxen- 
don  v.  230. 247 
Law  v.  Wallis  290 
Law,  Doe,  d.  Chadwick  v. 

319.  323 

Lea,  Doe,  d.  Spicet  v.    126.  133. 

136 

Lee  v.  Libb  261.  263 
7'.  Morris  79 


TABLE  OF  CASES  C1TET). 


izxi 


Lee  v.  Rowkeley, 
-,  Rigley  v. 


Lees,  Roe,  d  Bree  v. 

Leeds  ( Duke  of,)  Pugh  v. 

Legg,  d.  Scot,  v.  Benion  122.  125 


Page 
300 
300 
129 
200 


Leighton  i>.  Leighton 

Lengridge,  Richardson  v. 

Lerke,  Ford  v. 

Levi,  Doe,  d.  Mitchell  r. 

Lewis,  Earl  v. 

,  Doe,  d.  Hitchings  v. 


316 
103 

24 
123 
273 
159, 
1..0 
261 
,  263 
298 

40 


Lemayne  v.  Stanley 
Libb,  Lea  v.  26l. 

Linsey  v.  Clerk 
Lincoln  College  case 
Lippencott,  Doe,  d.  Harwood 

v.  232 

Lister,  Garret  v.  2"l 

Little  v.  Heaton  14* 

Littler,  Clymer  v.  294 

Llewelyn  v.  Williams  200 

Lloyd,  Kynaston  v.  39 

London  ( Bishop  of,)  Rex  v.  17 
Longchamp,  d.  Goodfellow,  v. 

Fish  26? 

Longhurst,  Goodwin  v.  65.  67 
Lonsdale,  Roe,  d.  Raper  T.  187 
Lord,  Roe,  d.  Thome,  c.  253 
Loveless  u.  Ratcliflf  S10 

Lovelock,  d.  Norris,  v.  Dan- 
caster  230,  2S1 
Lowe,  Rowe,  d.  Ebrall  r».  86 

v.  Jollifle  269 

Lowthal  D.  Tomkins  70 

Lucas  v.  How  75 

Lushington,  d.  Godfrey  r. 

Dose  314 

Luttrell,  Pollard  v.  97 

Luxton,  Doe,  d.  Blake  v.  32 

M. 

Maberly,  Thompson  v.  128 

Machel  v.  Temple  ?65 


Macdunoch  v.  Stafford         20.  22 
Mackinder,  Pendock,  d.  Mac- 
kinder  v.  265 
MacKenzie  v.  Frazer               260 
Maddon,  d.  Baker  v.  White 

69.  120 

Maddox,  Orrell  v.  277 

Maldon's  case  1"9 

Mantle  v.  Wellington 
Mann,  Winkworth  v. 
Kingsdale  v 


187 
108 

309.  310 
Martyn  v.  Nichols  24 

Marsh,  Jones,  d.  Griffiths  v.  124. 
177-  183 

Marshall,  Fitzgerald  v.        23.  25 
Martin  v.  Duvfs  233 

Marriott,  Fenn,  d.  Rickattson 

v.  2(JO.  306 

Massey  v   Rice  25 

Mason,  Doe,  d.  Mason  v,         258 

-  ,  d   Kendale,  v.  Hodg- 
son 226.  211 

-  v.  Fox  295 
Maynard,  Rawson  v.  24 


Medlioott  v  Brewster 

Mellish  Sturt  v.  60 

-  ,  Baker  v.        R6.  247.  277 


Merlott,  Tapner,  d.  Peckham 
v.  91.  96 


Merrell  v.  Smith 
Methold  v.  Noright 
M<'tralf  v.  Harvey 
Miller,  Doe,  d.  Warry  v. 

,  Doe,  d.  Rumford  v. 

— — —  r.  Foster 


L><  1 
217 

66 
203 
274 
273 
187 


Milbnrn,  Powell  v. 
Millener  v.  Robinson 
Minsliull,  Roe,  d.  Crompton  v. 

144. 161 

Mitrhell,  Doe,  d.  Esdaile  v.     190 
Mojrgrtge  v.  Davis  833 

Molnieaux  v.  Molineaux  18 

v.  Fulgam  310 

Moore  v.  Fursden  187.  '.'96 

••  v.  Hawkins  246 

,  Goodritjht  v.  327 


XXXII 


TABLE  OF  CASES  CITED. 


Page 

Morris  v.  Goodnight  18] 

Morgan,  Goodtitle,  d.  Norris  v.  62 

,  Dowding  v.  Bissel       1 12 

Morres  v.  Barry  295 

Mortis  v.  Barry  187 

,  Holdfast  v.  333 

Morgan  v.  Stapely  304 

Morewood,  Outram  v.  248 

Moss  v.  Galliraore  33.  106 

Mostyn  v.  Fabritjas  186 

Moss,  Goodright,  d.  Stephens 

v.  255 

Mulliner,  Doe,  d.  Colclough  v.  o3 
Musgrave,  d.  Hilton,  v.  Shelly  92 

N. 

Nash  v.  Edmunds  270 

Nralf,  Smalley  v.  214 

Negative,  d.  Parsons,  v.  Posi- 
tive 221 
Neving,  SouNhy  v.  144 
Newman  v.  Holdmyfast     17.  296 

,  Shiilyr.  132 

Newton.  Waddy  v.  18 
N  i>  hols,  Martin  v.                       24 
Noden,  Doe,  d.  Miller  v.          114 
Noke  -o.  Windbam      69-  195.  318 
Nokes,  Awder  v.  76 
Noright,  Goodright,  d.  Ste- 
venson v.                           157 
,  ,  d.   Rus- 
sell, v.                              225 

,  Methold  v.  217 

Norris,  Lee  r.  71) 

Norman,  Gardiner  v.  179 

North,  Goodtitle  v.  329.  333 

O. 

Oakes,  Styles,  d.  Redhead  v.  290 
Oakapple,  d.  Green,  v.  Copous  280 
Gates,  d.  Wigfall,  v.  Brydon    33 
92.  236 


Page 

Odingsall  T».  Jackson  25 

Old,  Doe,  d.  Bristow  v.  175 

Old  Arlesford,  Rex  v.  18 

Omichund  v.  Barker  265 

Orchard,  Jory  v.  279 

Orrell  v.  Maddox  277 

Oshourn  v.  Kider  200 

Otway,  Goodtitle  d.  Wright,  v.  23 
Outram  v.  Morewood  248 

Ougly,  Peate  v.  262 


P. 

Paine,  Roe,  d.  Goatly  v. 
Painter,  Sturgeon  v. 
Palmer's  case 
Palmer,  Knipe  v. 

,  Pigeot  v. 

v.  Edwards 


169 
110 
24 
83 
39 
1(54 

Palmer,  Doe,  d    Brierly  v.        142 
Partridge  v.  Ball  194 

Parkin, 'Aialin  v.         189-330.336 
Papons.  Zouch,  d  Abbott  v.     (i9 

,  v.  1   5 

Parker,  Roe,  d  Beebee  v.  258 
Pari. hurst,  Berington,  d.  Dor- 
mer v.  yi.  99.  191 
Pasquali.  Doe,  d.  Williams  v.  119 
Passer,  Dol>!>s  v.  >.  239 
Payne,  Wood  v.  ~2.  297 
Payne's  »  n>e  79 
Pawlet.  Croft  v.  265.  268 
Pearson.  Doe,  d.  Gill  v.  97-  187 
Peaceable,  d  Hornblower,  v. 

Read  57.  95.  96 

v.  Troublesome       207 

Peate  r.  Ougly  262 

Pegge,  Doe,  d.  Bristow  v.          33 
Pemble  v.  Sterne  20.  24 

Pembroke,    Lord,    Doe,    d. 

Johnson  v.  256 

Pendrill  v.  Pendrill  256 

Pendock,  d     Mackinder,   v. 

Mat-kinder  265 

Pennant's  case         144.  l6l.  17."- 


TABLE  OF  CASES  CITED. 


XXXIII 


Page 

Penphraser.  Lord  Lansdowne  263 
Percival,  Tlirustout,  d.  Dun- 
ham v 

Perkins,  Doe,  d.  Burrell  v. 
Peto  v.  Checy 
Peterson,  Barnes  v. 
Petifer,  Ward  v. 
Petty,  Eccleston  v. 
Peytoe's  case 
Phillips,  Chaworth  v. 

,  Clarke  v. 

v.  Bury 

-,  Snow,  d.  Crawley  v. 


319 
95 
181 
22 
19 
265 
242 
76 
99 
243 
273 
310 
194 


Pierson  v.  Tavenor 

Piers,  Swadling  v. 

Pierce,  Roe,  d.  Dean  of  Ro- 

chester v.  121.  125.  194.279 

-  ,  Davis  v.  248 
Piggott  v.  Palmer  39 
Pike  v.  Badmering                    269 
Pilkington,  Doe,  d.  Hardman 

v.  202 

Piper,  Coplestone  ».  22 

Pitcher,  Rogers  v.  70 

Pitfall,  Foster  v.  40 

Pleasant,  d.  Hayton,v.  Benson  123 
Plowman,  Doe,  d.  Bradshaw  v.  23 
Plomer  v.  Hockhead  179 

Podger's  case  94.  96,  97 

Poole  v.  Bentley  112 

Pollard  v.  Luttrell  97 

-  ,  Audley  v.  97 
Pomfret  v.  Windsor  94 
Pope,  Goodtitle,  d.  Taysuin  v.  326 
Porch,  Doe,  d.  O'Connel  v.      205 
Porter,  Doe,  d.  Shore  u.  72.  11  9. 

—  192 

-  Girdlestone  t  . 


Positive,   Negative,  d.   Par- 

sons v. 

Pott,  Doe,  d.  Gibbon  v. 
Potts  v.  Duraiit 
Poultney  v.  Holmes 
Powell  v.  Miltmrn 
Power,  ROVST,  d.  Boyce  v. 
Price,  Hancock  v. 


331 

221 

33 

273 

164 

273 

"9$ 

22 


Page 

Price,  Right,  d.  Catorv.  261.  265 
Prideaux,  Doe,  d.  Brune  v.  108. 

—118. 
Pritchard,  Jedkins,  d.  Harris 

v.  92. 252 

Proctor  v.  Johnson  311 

Proudfoot's  case  70 

Presser,  Doe,  d.  Fishar  v.  56 
Proude,  Green  v.  96 

Pugh  v.  Duke  of  Leeds  200 

Puller,  Hutchinson  v.  24 

Pulteney  v.  Warren  331 

Pure,  d.  Withers,  v.  Sturdy  157 
Purvis,  Denn,  d.  Burghes  v.  197 
Purdy,  Davis  v.  1 99 

Q. 


Quigley,  Doe,  d.  Knight  v. 
—117 

R. 

Radcliffe  v.  Chaplin 
Raffan,  Doe,  d.  Peacock  v. 
Ramsbottom  v.  Brickhnrst 
Rand,  Guy  v. 
Ratclifle's  case 

v.  Tate 

•,  Loveless  v. 


104 


258 
134 
272 
197 
68 
310 
310 

Rawsterne,  Reading  v.  53 

Rawlins,  Dcnn,  d.  Brune  v.     104. 
108.118.273 

Rawson  v.  Maynard  24 
Reading  r.  Rawsterne  55 
Reade,  Doe,  d.  Burrough  v.       78 
,  Peaceable,  d.  Horn- 
blower  v.                57.  93,  96 

,  Roe,  d.  Reade  v.          32 

,  Doe,  d.  Marsack  v.    121 

187.275 

Redfern,  Doe,  d.  Hayne  v.         80 
Rennett,  Rex  v.  67 

Rex  v.  Bishop  of  London  17 


XXXIV 


TABLK  OF  CASES  CITED. 


Page 

Rext>.  Bery  180 

7'.  Burgesses  of  Carmar- 


then 

-  v.  Erilli 

-  v.  Eriswell 

-  TJ.  Harris 

-  •».  Mayor  of  Bristow 

-  v.  Old  Arlesford 

-  v.  Rennet 

-  v.  Shelly 

-  u.  Stoke 

-  v.  Unitt 


292 
295 
255 
310 
177 

18 

67 
270 

19 
184 
315 
202 

25 
22,  23 


Page 

Roe,  d  Burlton,  v  Roe     205 
,  cl.  Cholmondley,  v.  Doe 


-,  d.  Cook,  P.  Doe 


Reynolds,  Doe,  v. 

Rhodes,  Scrape  v. 

Rice,  Massey  D. 

Rickhouse,  Rochester  v. 

Rich,  Goodright,  d.  Balsh  v.    234 

,  d.  Cullen,  v.  Johnson     285 

,  Wilson  v. 

— — ,  Ryal  v. 
Richardson  v.  Lengridge 
— ,  Bunie  ??. 


179 
144 

105 
331 
283 
200 
254 
300 
2G1 


Riokaiby,  Doe,  d.  Hindly  v. 
Rider,  Osborn  v. 
Ridgway,  Higham  p. 
Rigley  v.  Lee 
Right,   d.  Cater,    v.   Price 
—265. 

,  d.  Dean  of  Wells,  •< 

Bawden  11! 

,  d.  Fisher,  v.  Cuthell     121 

—274 

,  d.  Flower,  v.  Darby       130, 

131.  134 

,  d.  Lewis,  v.  Beard  104. 116 

,  Birch  v.          106,  107-  128. 

144.  284.  329 

Rivington,  Allen  v.  31 

Roberts  v.  Cook  320 

,  Fagg  v.  290 

Robinson,  Millener  v.  187 

Rochester  p.  Rickhouse  23 

Roe,  d.  Baraford,  p.  Hayley     122 

,  d.  Beebee,  p.  Parker      258 

,  d.  Bree,  v.  Lees  129 

,  d.  Brune,  v.  Rawlins        273 


238 

,  d.  Crumpton,  p.  Minshull 

144.  161 

,  d.  Dingley,  p.  Sales        165 

,  d.  Ebrall,  p.  Lowe  86 

,  d.  Goatly,  p.  Paine         169 

,  d.  Gregson,p.  Harrison  164. 

172, 173 

,  d.  Haldane,  p.  Harvey  29 
,d.  Hambrook,  p.  Doe  212. 
—218 

,  d.  Henderson,  p.  Char- 
nock  131 
•,  d.  Humphreys,  p.  Doe    312 
,  d.  Hunter,  p.  Galliers    148. 
—166 

-,  d.  Hyde,  p.  Doe  240 

-,d. Jackson, p.  Ashburner  111 
-,  d.  Jeffreys,  p.  Hicks  66,  67. 
270.  284 

-,  d.  Johnson,  P.  Ireland    285 
-,  d.  Jordan,  p.  Ward        102. 
108.  134 


-,  d  Kaye,  p.  Soley  327 

-,  d.  Leak,  v.  Doe  229 

-,  d.  Lee,  p.  Ellis  204 

-,  d.  Pellat,  p.  Ferrars  58 
-,  d.  Raper,  p.  Lonsdale  187 
-,  d.  Reade,  p.  Reade  32 
-,  d.  Dean  of  Rochester, 

p.  Pierce  121.125.  194 

-,  d.  Saul,  p.  Dawson  307 
-,  d.  Stephenson,  P.  Doe  201 
-,  d.  Thorne,  p.  Lord  253 

-,  d.  Truscott,  p.  Elliott       96 
-,  d.  West,  P.  Davies         150. 
154,  155,  156.  277-  282 
-,  d.  Wrangham,  p.  Her- 

sey  190 

-p.  Wiggs  123,210 

-  p.  Williamson  192 

-,  Doe,  d.  Bass  p.  208 

-, ,  d.  Baddam  v.        211 

— , ,  d.  Bailey  p.  212 


TABLE  OF  CASES  CITED. 


xxxv 


Page 

Roe,  Doe,  d.  Beyer  u.             31J 
,  ,  d.  Bird  v.               207 
-  ...  d  Clarke  r,           ?07 

s. 

Pagt 

Saint  John  v.  Corny  n            21,  22 
Sales,  Roe,  d.  Dingley  v.          lG5 
Salisbury  (Lord's)  case             284 

5  ,  d.  Cobbey  v.         201 
,  ,  d.  Dry  u.               2J4 
d    Feldon  v           320 

,  ,  d.  Ginger  v.          23ti 

Salter,  Doe,  d.  Toilet  v.            197 
d    Prior  r               303 

pany  v.                               225 

Salionstall,  Capel  v.                 204 
Samuel,  Doe,  d.  Castleton  v. 
134.  281 
Sandwich  (Lord's)  case            291 
Savel's  case                                  24 

Hnmnnri  T                               94 

,  d.  Heblethwaite 
v.                                         231 
,  d.  Leak  v.             2?9 

dl  pHtrpr  n             29") 

d  Morton  v           °43 

Savage  v.  Dent         177-  183.  210 
Saville,  Goodtille,  d.   Lux- 
more  v.                                 171 
Say  and  Sele,  (Lord),  Jones 
v.                                             81 
Saver,  Doe,  d.  Leeson  v.  104.  116 
Scott,  Doe.  d.  Graham  v.           87 
Scrape  v.  Rhodes                       202 
Scrutton,  Driver,  d.  Scrutton 
v.                                         202 
Seagrave,  Sullivan  r.                   24 
<i-:nvell.  Bond  v.                         264 
Seers  ir.  liiixl                               172 
Seed,  Tyley  v.                           131 
Selwyn,  Doe,  d.  Wadmore  v.   13.0 
Semayne's  case                           300 
S.M-le,"  Claxrnore  v.                     290 
Seymour's  «  ;is«-                       36.  95 
Shamtitle.  Fairclaim.d.  Fow- 
ler r.             12.229,230.232 
Shackleton,  Fairclaim,  d.  Fow- 
l«-r  v.                                     56 
Shank,  Douplas  r.                       198 
Sli:i|)land  :•.  Sinilh                          81 
Sliai  p«\  Chapman  r.                    68 
Sharringlon  •'.  Strotton                50 
Sli.-niiaii  r.  Cocke                         177 
Slu-lly,  Rex  v.                              270 

TVIimrrrnvf*  il     Pliltnn  7f         09 

,  d.  Neale  ».            214 
-       d    Fate  v               311 

H    P«"ir<;i»n  11             292 

—  —   d    I'inckard  v       3W 

,  d.  Quintin  v.          217 
d    Rust  r               2-H 

,  d.  Troughton  w. 

225.  240 
,.  ,1    Tnhh  w                   S2*i 

,  ,  d.  Whitfield  v.      2i? 
d   Wilson  P          21"' 

—217 
(|    YV  right  v          215 

,  Fenn.  d.  Buckler.           214 
,  Roe,  d.  Burlton  v.         219. 
—237 
,  Baker  /-.                             17 
Doe  v                              211 

Rogers  v.  Pitcher                         70 
Rolle,  Gree  v.               52.  97.  2W 
Rosser,  Doe,  d.  Morris  <?.           89 
Howe,  d.  Boyce,  i\  Power        295 
Rowlison,  Timmins  p.      103.  1J.O. 
144.939 
Rowell,  Clerke  P.               192.  294 
Rowkelcy,  Lee  v.                      300 
lloyston  v.  Eccleston            20.  24 
Rudston  r.  Yates                         <>'' 
Russell,  Webb  v.                 76.  17  J 
Rumney  v.  Eves                         257 
Ryal  P.  Rich                             144 

Shrnvin.  Karl  of  Bath  v.           3l6 
-,  Doe,  d.  Pitt  t  . 
Sl)irl«-y  T.  Newman                     132 

XXXVI 


TABLE  OF  CASES  CITED. 


Page 

Shires  77.  Glasscock  264 

Short  77   King  319.  3*2 

77.  Heath  339 

,  d.  Elmes  77.  King  214 

Silvester,  d.  Law,?'.  Wilson       81 
Sims,  Knight  77.  24 

Sindercombe,  Bindover  77.    21.  24 
Skinner  77.  Stacey  326 

,  Ablett  77.  198 

Slade's  case  72 

,  England,  d.  Syburn 

77.  32.  87.  247 

Slabourne  77.  Bengo  296 

Smales  77.  Dale  55.  96 

Smartle  77.  Williams  62 

Smartley  77.  Henden  179 

Smart,  Wharod  77.  314 

,  Fenn,  d.  Matthews  v. 

94.  172 

Smalley  v.  Neale  214 

Small,  d.  Baker,  77.  Cole  291.  297 
Smith,  d.  Ginger,  77.  Barnar- 

diston  305.  321 

,  d.  Lord  Stourton,  v. 

Hurst  212 

— — ,  Doe,  d.  Hanson  77.          270 
— — — ,  Lady,  Doe,  d.  Knight 

77.  232 

,  Doe,  d.  Smith  v.  -271 

,  Doe,  d.  Bromfield  77.      111. 

119 

,  Knight,  d.  Phillips  v.        84 

,  Throgmorton,  d.  Mil- 
ler 77.  318 

r.  Blackham  ;.'."> 2 

v.  Barrett  17 

77.  Crabb  237 

7>.  Evans  261 

r.  Spooner  155 

,  Brice  7-.  265 

,  Davy  77.  264 

,  Ellis  r.  261,  262 

,  Merrell  r.  201 

,  Shapland  17.  81 

Snapp,  Archer,  d.  Hankey  r.  326 
Snell,  Birdr.   '  182 


Page 

Snow,  d.  Crawley,  v.  Phillips  273 
Snowdon,  Doe,  d.  Daggett  v.  137 
Soley,  Roe,  d.  Kaye  v.  327 

Soulsby  v.  Neving  144 

Spark,  Weeks  v. 

Sparkes's  case  65 

Sparrow,  Wykes  v.  24 

Spence,  Doe,  d.  Strickland  v. 

136.  138 

Spiller,  Doe  77.  125 

Spooner,  Smith  v.  155 

Spray,  Denn,  d.  Goodwin  t>.  258 
Sprightley,  d.  Collins,  v.  Dunch 

214 

Spurrier,  Denn  v.  129 

Stanley,  Ashworth  v.  22 

-  ,  Leymayne  77.  261 

Stafford,  Macdunoch  v.  20.  22 
Staple,  Doe,  d.  Hodson  v.  33.  87 
Stacey,  Skinner  v.  326 

Stapely,  Morgan  v.  304 

Sterne,  Pemble  v.  20.  24 

Stennett,  Doe,  d.  Hollings- 

worth  77.  104.  117 

Steele,  Doe,  d.  Digby  v.  141.  271 
Stephens  77.  Elliot  65 

Stephenson,  Doe,  d.  Walker 


--  77.  Croker 
Stoke,  Rex  v. 
Story,  Windsor  77. 


270.  319 
200 
19 
57 

94.  100 
76 
262 


Stowell  T>.  Zouch 
Stockert).  Barney 
Stonehouse  v.  Evelyn 
Strother,  Goodright,  d.  Small- 

wood  77.  26.  1  95 

Stone,  Jurdan  r.  68 

Strotton,  Sharrington  r.  50 

Stroud,  Hems  77.  25.  274 

Sturgeon  v.  Painter  110 

Sturdy,  Pure,  d.  Withers  i-.      157 
Sturt  77.  Mellish  60 

Styles,  d.  Redhead,  v.  Oakes  290 
Sullivan  77.  Seagrave  24 

Swann,  Fox  v.          162.  173.  251 
Swadling  v.  Piers  19-4 


TABLE  OF  CASES  CITED. 


XXXVU 


Page 

Sykes,  d.  Murgatroyd  «.  H8 

Symonds,  White.icre,  d.  Boult 

v  143 

Syrans,  Dumpor  r.  172 

T. 


Tailbois,  Wimbish  v.  45 

Tankard,  Whaley  v.  94 

Tapner,  d.  Peckham,  v.  Mer- 

lott  91.96 

Tate,  Ratcliffe  v.  310 

Tavenor,  Pierson  v.  310 

Taylor,  d.  Atkins,  v.  Horde 

40.  294.  306 

v.  Cole  70 

v.  Jefts  210 

v.  Wilbore  298 

Telling,  Doe,  d.  Whatley  v.     191 
Temple,  Machel  v.  265 

Thatcher,  Hazlewood,   d. 

Price  v.  207 

Thompson  v.  Maberly  128 

,  Kirkman  v.  39 

,  Barwick,  d.  Mayor 

of  Richmond  v.  247 

Thomas,  d.  Jones,  v.  Thomas  280 

,  William,  d.  Hughes  t>.  40 

v.  Goodtitle  314 

,  Challenor  v.  18 

,  Kesworth  v.  202 

Thornby,  d.  Hamilton,  v. 

Fleetwood  304 

Thorpe  v.  Fry  336 

Throgmorton,  d.  Fairfax,  v. 

Bentley  289 
,  d.  Miller  v. 

Smith  318 

Thre'r  v.  Barton  76.  172 

Thredder  v.  Travis  206 

Thrustont,  d.  Dunham,  v.  Per- 

cival  319 

"••    ,  Farmer,  d.  Miles  T.  214 


Page 

Thrustout,  Goodright,  d.  Wad- 
dington  v.  208 

,  Goodtitle,  d.  Mas- 

sa  v.  212 

,  Goodright,  d.  Jones 

v.  211.318 

,  Hyde,  d.  Culliford 

v.  224 
,  d.  Parke,  v.  Trou- 
blesome                    321.  323 

,  d.  Turner,  v.  Gray 

202.  288.  318 

}  ,1.  Wilson,  v.  Foot  301 

,  d.  Williams,  v. 

Holdfast  320 

, v.  Bedwell       289.  301. 

304 

Thunder,  d.  Weaver,  v.  Bel- 
cher   62.  104.  107.  117.  284 
Thyn  v.  Thyn  16 

Tiley  v.  Bailey  303 

Timmins  v.  Rowlison       103.  125. 
144.  329 

Tomkins,  Lowthal  v.  70 

Tombs,  Goodtitle  v.  330.  338 
Toogood,  Bagshaw,  d.  Ash- 
ton  v.  214 
Toulson,  Wheeler  v.  19,  20 
Travis,  Thredder  v.  206 
Treport's  case  186 
Tredway  v.  Harbert  319 
Troublesome,  Peaceable  t>.  207 

,  Thrustout,  d. 

Parke  v.  321.  323 

Trussell,  Doe,  d.  Lepping- 

well  v.  305 

Trymner  v.  Jackson  262 

Tunstall,  Duckworth,  d.  Tubly 
v.  158 

v.  Brend  185 

Tupper,  d.  Mercer,  v.  Doe       213 
Turner,  Bourne  v.  250 

,  v.  Barnaby          289.  301 

Ty ley  r.  Seed  l-l 

Tyrrell,  Davenport  v.  .17 


XXXVIII 


TABLE  OF  CASES  CITED. 


u. 

Underbill,  Devereux  v. 
Unitt,  Rex  v. 
Upton  v.  Wells 
Utterson  v.  Vernon 

V. 

Vernon,  Doe,  d.  Vernon  v. 


Page 
310 
184 
309 
333 


-,  Utterson  v. 


67.  270 
333 

Vicars  v.  Haydon,  d.  Carrol    204 
Vice,  Goodright,  d.  Rowell  v. 

301.  SOS 
Vivian,  Goodright,  d.  Peters 

v.  168 

Vince,  Doe,  d.  Hinde  v.  127-  136 
Vowels  v.  Young  255,  256 

w. 

Wade  v.  Cole  68 

Wadman  v.  Calcraft  158 

Waddy  v.  Newton  18 

Wagstaff,  Gulliver  v.  217 

Wakefield,  Goodgain  r.  200 

Wakeley,  Warren,  v.  22.  25.  198 
Walthew,  Ward  v.  40 

Walton,  Goodtitle  v.  22 

Wallis,  Law  v.  290 

Walter,  Goodtitle,  d.  Bern- 
bridge,  ».  195 
Wandlass,  Doe,  d.  Forster  v. 

155.  307 

Warneford  v.  Warneford          261 
Warren  ».  Wakeley     22.  25.  198 

,  Pulteney  v.  331 

Warden's  case  25 

Ward  v.  Petti fer  19 

v.  Walthew  40 

,  Roe,  d.  Jordan  v.   102.  108. 

—134 

Watkins,  Doe,  d.  Lord  Brad- 
ford r.  123.  138 


Page 

Watts,  Doe,  d.  Martin  v.  108 
Watts,  Doe,  d.  Duckett  v.  92.  96 
Way,  Goodtitle,  d.  Estwickr.  110 
Webb  v.  Russell  76.  172 

Wedgwood,  Halsal  p.  214 

Weeks  v.  Sparkes  255 

,  Eastcourt  v.  65 

Wells,  Upton  v.  309 

Wellington,  Danvers  v.  23 

Welsh,  Beck,  d.  Hawkins  v.  69 
Weller,  Doe,  d.  Collins  v.  134 
VN  erasley,  Howard  v.  130 

Weston,  Heatherly,  d.  Wor- 

thington  v.  187 

West,  Connor  v.  21 .  25 

Wharod  v.  Smart  314 

Whaley  v.  Tankard  94 

Wharton,  Doe,  d.  Da  Costa  v.  32. 
62.  66.  72.  272 

Whayman,  Doe,  d.  Chaplin  v.  120 
Wheeler  v.  Toulson  19,  20 

Wheatley,  Comyn  v.  17 

,  Wright  v.  20 

256 
337 


Whitlocke  v.  Baker 
White,  Denn  v. 

,  M addon,  d.  Baker  v. 

69.  120 
Whiteaere,  d.  Boult,  v.  Sy- 

monds  143 

W  hitehead,  Doe,  d.  Odiarne 

v.  36.  93 

Whitley,  Johns  v.  176 

Wiggs,  Roer.  123.210 

Wilson  v.  Rich  179 

v.  Hodges  253 

,  Silvester,  d.  Law  v.      81 

,,  Doe,  d.  Foley  v.  65. 104. 

—284 
Wilkinson,  Doe,  d.  Brown  v.   131 

v.  Colley  121 

Wilbore,  Taylor  r.  298 
Wilde,  Doe,  d.  Jones  r.  250 
Williams,  Doe,  d.  Forster  v.  250 
,  d.  Hughes,  v.  Tho- 
mas 40 
.  Smartle  9.  62 


TABLE  OF  CASES  CITED. 


XXXIX 


Page 
Williams,  d.  Johnson,  v.  Keen  243 

,  Llewelyn  ».  200 

Wilniot,  Creach  p.  53 

Willingale,  Zouch,  d.  Ward 

v.  144 

Williamson,  Roe  ».  192 

Wimbish  v.  Tailbois  45 

Wine,  Baldwin  v.  26.  80 

Windham,  Noke  v.  69.  195.  318 
AN  inwood,  Bryan,  d.  Child  v.  53 
Windsor,  Pomfret  v.  94 

,  Storey  v.  57 

Winkworth  v.  Mann  198 

Wippel,  Doe,  d.  Bryant  v.  188 
Wisdom,  George,  d.  Bradley 

313 
109 
311 
26 
146 
187 
292 

70.  272 
22   297 


Wise,  Harrington  v. 
Withers  e.  Harris 
Wiltingham  v.  Andrews 
Wither  v.  Gibson 
Wellington,  Mantle  v. 
Wood,  Goodnght  v. 
,  Hammond  v. 


v.  Payne 

,  Furley,  d.  Mayor  of  Can- 
terbury v          127.  136.  194 
Wood,  Fenn,  d.  Blanchard  v.  235 


Page 
Woodman,  Doe,  d.  Earl  of 

Carlisle  v.  124 

Wombwell,  Doe,  d.  Baker  v.  281 
VVorsley,  Doe,  d.  Holland  v.  1&4 
Worrall  v.  Harper  26 

.  v.  Bent  296 

Wright  v.  Wheatley  20 

Wrightman,  Doe,  d.  Matthew- 
son  v.  125, 126 
Wykes  v.  Sparrow  24 
Wyndham  v.  Chetwynd  26 


Y. 

Yates,  Rudston  v. 
Yeomans,  Burbury  v. 
Young  v.  Holmes 
,  Vowels  v. 

z. 


69 

23 

73 

255,  256 


Zouch,  d.  Abboft,  v.  Parsons    69 

,  d.  Forse,  v.  Forse         70 

,  Stowell  v.        59-  94.  100 

,d.  Ward,w.  Willingale  144 

— — —  v.  Parsons  196 


. 


TABLE 


OF 


THE  CASES  CITED 


r.V  THE  NOTES  TO  THE  AMERICAN  EDITION. 


Abeel  o.  Radcliff 
Albee  w.  Ward 
Atkyns  v.  Horde 

Baggs  v.  Black 
Balurdin  v.  Shore 
Barber  v .  Root 
Baron  v.  Abeel 
Barr  v.  Gratz 
Bartlett  v.  Delprat 

v.  Harlow 

Bateman  v.  Allen 
Baxter  v.  Brown 
Bedford  v.  M'Etherron 
Benson  v.  Matsdorf 
Berrington  v.  Parkhurst 
Betts  v.  Badger 
Blunden  v.  Baugh 
Boyd  ».  Graves 
Brad^li  v.  Schenck 
Br?ndtfr  ».  Marshall 
Brant  o.  Livennore 

?'.  Ogden 

•  v.  Klein 


Page 

Page 

113 

Brant  ».  Dyckman 

250 

287 

Buckminster  v.  Perry 

286 

77 

Bunker  ».  Cook 

42 

Burns  v.  Swift 

49 

143 

Burrell  v.  Burrell 

49 

88 

Byrne  v.  Van  Hoesen 

68 

92 

209.  335 

Catlin  v.  Jackson 

71 

260 

Clarke  ».  Waite 

251 

251 

Cluggage  0.  Duncan 

49 

88 

Cod  man  v.  Winslow 

287 

77 

Coles  0.  Coles 

88 

113 

Collins  v.  Torrey 

29 

102 

Commonwealth  v.  Dudley 

47 

336 

19 

w  \J\J 

98 

Cortelyou  v  Van  Brundt 

19-  287 

278 

•  42 

Deconche  v,  Savetier 

53 

•      48 

Demarest  v.  Wynkoop 

59.61 

116 

Dickinson  v.  Barber 

286 

58 

Ditzads  v.  Butler 

202 

29.  249 

Doe  v.  Hull 

291 

47 

29 

v.  regge 

275 

Duffield  v.  Stiles 

335 

TABLE  OF  CASES  CITED. 


zli 


Ebert  v.  Wood 
Erskine  w.  Townsend 

Fenn  v.  Wood 
Flint  v.  Sheldon 
Forster  v.  Mellen 
Fowle  v.  Bigelow 
Frier  u.  Jackson 

Galloway  v.  Ogle 
Ganvood  v.  Dennis 
Gerrish  v.  Bearce 
Goodright  v.  Forester 
Goodwin  v.  Richardson 
Gould  v.  Newman 

Hallett  v.  Wylie 
Hatch  0.  Hatch 
Hathorn  v.  King 
Hawn  v.  Norris 
Heister  ».  Fortner 
Higginson  ».  Mein 
Hill  v.  Payson 
Hitchcock  #.  Harrington 
Hyatt  v.  Wood 

Ilderton  v.  Atkinson 
Inches  v.  Leonard 

Jackson  v.  Agan 

Page 

48 
63 

231 
288 
30 
288 
245 

30 
260 
288 
42 
63 
43 

113 
264 
286 
32 
71 
58 
64.  251 
29 
31 

251 

58 

163 
102.115 
30 
263.  287 
122 
202 
249.  251 
71 
202 
72 

259 

255 
48.  287 
105.  187 
163.  254 
105 
18 

F 

Page 
Jackson  v.  Bush                          30 
v.  Bushnell                   305 
_  p   Campbell                   49 

..  ,.    Pnrv                               5/10 

v  Catlin                         71 

_  v  Chase                       105 

v.  Cooley                      254 
.  v.  Cooper                    299 
.....  p  Crafts                  63  6  1 

v.  Creal  &  Kellogg 
30.  49.  55 
v.  Cris                         269 
v.  Croy            58.  72.  287 
v.  Crysler                       91 

v.  Davenport               245 
v.  Davis              63.  71.  72 

WDplinrPu           A'-t    48    71 

v.  Deleng                       89 

v.  Denniston  88.  236.  267 
w*  DC  Walts                   29 
•  v.  Deyo          32.  105.  1  15 
—  v.  Dickinson                   71 
v.  Dieffendorf                77 
».  Ditz                          202 
•  v.  Dubois                        63 
v.  Durlaud                   267 

WK'nwf  r>r                        O  \fr     OCT* 

v.  Ayres 
••            ».  Babcock  231. 
—  —  —  v.  Baker 
v.  Bancraft 
'           v.  Bard           58. 
v.  Bartlett 
1             v.  Belknap 
'            v.  Benedict 
—          v.  Blanshan 
••            v.  Boneham 
•           v.  Bowen 
v.  Bradt 
v.  Brownell  116. 
v.  Bryan 
».  Buel 

•  r  ner                           Jcoy 
v.  Frost                        251 

v.  Garnsey                     30 
•  -          v-  Graham                30.  54 
v.  Green                      105 
v.  Hakes                34.  159 
v.  Hallenbach              251 
—  —  v.  Halloway                  263 
v.  Harder          30,  31,  32 

170 
v.  Hart                         288 

.     ...    tl    HncKrniirb  TO    9fi?    1  1  •> 

v.  Haviland     49.  98.  306 

xlii 


TABLE  OF  CASES  CITED. 


Page 
Jackson  v.  Hazen         31.  17.  299 

T    Iliiuimn                       29 

Page 
Jackson  v.  Sclover                    189 

„    Srntt                                      7" 

••  i*   Hocrebooni               288 

....     n    Smrt                        38    58 

v.  Hudson                        32 
v.  Hull                           63 
IT    Tnv                                   4R 

v.  Seelye                         31 
v.  Sellick                         49 
f,    Slnffpr                             71 

r.  Killenbach                113 
r>   Kinrrslev            1]rr    °78 

v.  Sharp                    48.  58 

n    Ki^qplhrnrh                 94Q 

f?    Strlnnir                              1  RR 

v.  Kniffen             2G2.  269 

.  —   .            7!     Kntifh                                 O0° 

r.  Silvernail          164.  166 

it    Sinsnn                                    32 

r.  Lamson           105.  268 

__.    —  _  n    Tjirrnwnv                     5"iO 

v.  Smith      47.  49-  55.  89. 
220 
v.  Stanley                    287 

WT  nu/tnn                            9R7 

w.  Lunn                          98 

tt    Mil'm                              9f>  1 

v.  Stevens                       38 

..  .._  r   Stilf»<5        °O7   "ll     2°5 

v  M'Call              ?49.  9?? 

231.  239.  303.  312 

r  u    Sfnnn                                  33fi 

11    IM'Fvnv                         ?31 

t'.  M'Leod              30.  102 
y.  Minkler                       63 
v.  Moore                 49.  59 

^.     Miirnliir                                   988 

v.  Striker                        71 
0.  Thomas                      58 
v.  Todd            32.  48.  268 

lj    JVlvPl'S 

•      v   Tvlrr                          115 

».  Niven                        116 
—  v.  O'Douaghy                88 
v  Ogden              189.  250 

•'     P'irkpr                                    ^S8 

v.  Van  Bergen             307 

WVonrlArhf»Vflpn                  T2 

v  Van  Dusen      251.  260 
r   Van  Slvck                     3° 

,.     PJorrp                                        32 

r  Vischcr             000  "4° 

u  Potter                       2^3 

f  Vosburgh     °9  30  249 

??    Pratt                P0   f>3  71 

v.  Raymond                    43 
v.  Reynolds            30.  202 
v.  Rich                 163.  246 
v.  Richmond                 202 

•n    Rirhtmvpr               77   7& 

».  Waters                 47,  48 
v.  Wheat                        48 
f  Wheeler           119  246 

P  Whit  ford              29   30 

r   Whitlock                     4? 

„    Rnhin«i                                f»9 

P  Willard                        64 

v  Rogers  42  43  113  17' 

P  Wilscy              105  116 

,  r    Root          051    208  ^^ 

r  \Vil-on                      159 

y.  Rosevelt 
r.  Rowan                     Il6 
r.  Rnmsey           250.  269 
r.  Sample             115.  186 
r.  Schoonmnker  42.  48.  9§ 
r.  Scluitz                       165 

v.  Wood                        63 

p  Woods             °(57  n6° 

._  .  t»  Woodward      °67  ?99 

Johnson  r.  Allen                        88 
Kellogg  r.  Beers                        64 

TABLE  OF  CASES  CITED. 


xliii 


Kerable  v.  Fitch 
King  v.  King 

Lane  w.  Reynard 
Leland  ».  Stone 
Livingston  ».  Tenbroeck 
Loker  v.  Haynes 

Mann  v.  Mann 
Mathers  v.  Akewright 
M'Clung  v.  Ross 
M'Ferran  v.  Powers 
Menhall  w.  Wright 
Mitchell  v.  MiU'hell 
Murray  v.  Gouverneur 

Gates  u.  Brydon 

Paine  v.  M'Intier     249. 
Penrose  v.  Griffith 
People  v.  Leonard 

v.  Bradt 

».  Nelson 

Perley  y.  Chandler 
Peters  v.  Coudron 
Peytoe's  case 
Phelps  v.  Hartwell 
Phillips  w.  Covert 
Poole  v.  Richardson 
Poor  v.  Robinson 
Porter  v.  Hill 

v.  Millet 

Powell  v.  Waters 
Powers  v.  M'Ferran 

Revere  ».  Leonard 
Reynolds  (ex  parte) 
Right  r.  Beard 


Page 

Page 

210 

Saltonstall  v.  White 

178 

281 

Sedgwick  v,  Hallenbach 

29 

Sellick  v.  Adams 

89 

30 

Shepard  v.  Rogers 

88,89 

288 

Simpson  v.  Ammons 

63 

287 

Small  v.  Proctor 

43 

251 

Smartel  v.  Williams 

43 

Smith  v.  Burtis         30.  42.  48.  55 

287 

V      \C\r\Cf 

33 

32 

v.  Lorillard 

76 

88 

252 

v  Yandusen 

2*>Q 

29 

Smithwick  r.  Jordan 

*•*/;/ 

43.47 

293 

Stewart  v.  Doughty 

116 

335 

v.  Kip 

252 

Storer  v.  Batson 

252 

88 

v.  Freeman 

287 

287,  288 

Thornton  v.  Dixon 

88 

275 

113 

31 

Townsend  v.  Wild 

287 

189 

Truesdale  v.  Jefleries 

77 

70 

19 

Van  Alen  v.  Rogers 

189.  281 

26o 

246 

Wallace  v.  Duffield 

53 

249  286 

Waring  v.  Warren 

249 

105 

Watson  v.  Boylston 

287 

286 

».  Bailey 

249 

43 

Weston  ».  Hunt 

43 

88 

Wickham  v.  Conklin 

48 

29 

Williams  v.  Peyton 

377 

268 

v.  Jackson 

47 

30 

Wellington  v.  Gale 

29 

Wilson  v.  Boerem 

255 

287 

Wood  v.  Wood 

178 

312 

Woodard  ».  Paine 

265 

105 

Woods  v.  Lane 

31.77 

ERRATA. 

Page  47,  ui  notts,  line  23,  for  "  Odgeri"  read  "  Ogden." 
64,  in  note*,  line  11,  for  "  Before"  read  "  Under." 
166,  in  no/w,  line  6,  for  "  lessor'*  consent"  reao  "./?«<  offering  to  Icstor  iht 

right  of  pre-emption." 
189,  in  notes,  line  17,  for  "  Men"  read  "  Alen." 


TREATISE 


ON  THE 


CHAPTER  L 

OF  THE  ORIGIN—  PROGRESS—  AND  NATURE  OF  THE  ACTIOIS 
OF  EJECTMENT. 


THE  action  of  ejectment  is  a  fictitious  mode  of  legal 
proceeding,  by  which  possessory  titles  to  corporeal  heredi- 
taments and  tithes,  may  be  tried,  and  possession  obtained, 
without  the  process  of  a  real  action. 

The  alterations  which  from  time  to  time  have  taken 
place,  in  the  nature  and  uses  of  the  action  of  ejectment, 
form  a  remarkable  and  important  branch  of  the  changes 
effected  in  our  general  system  of  remedial  law.  From 
being  a  mere  action  of  trespass  to  recover  the  damages 
sustained  by  a  lessee  for  years,  when  ousted  of  his  posses- 
sion, it  has  gradually  usurped  the  place  of  all  the  ancient 
remedies  for  the  recovery  of  possessory  rights  to  real  pro- 
perty, and  is  at  the  present  time  the  universal  mode  of 
trying  possessory  titles.  The  alterations  have,  however, 
been  effected  by  the  most  simple  and  natural  means  ;  and 
in  tracing  the  remedy  through  its  several  gradations,  it  will 
be  found  continually  moulding  itself  to  the  condition  of  the 

t 


OF  THE  ORIGIN  OF  THE 

times,  and  extending  its  uses  and  powers,  as  the  progress 
of  civil  society  rendered  necessary  or  convenient. 

In  the  earlier  periods  of  our  history,  estates  for  years, 
according  to  their  present  import,  were  unknown.  Under 
the  feudal  system,  war  was  the  primary  object  even  of  legis- 
lation ;  and  it  is  therefore  by  no  means  surprising  that  the 
interests  of  the  inferior  tenantry  were  in  those  times  dis- 
regarded, and  that  the  remedies  for  the  recovery  of  lands 
were  altogether  confined  to  freehold  titles,  vested  in  the 
superior  landholders. 

The  lords,  indeed,  seldom  permitted  their  vassals  to  en- 
joy any  interest  in  the  lands  they  occupied,  which  could 
render  them  independent  of  their  will ;  and,  even  when 
they  did  grant  them  a  right  to  the  possession  for  a  determi- 
nate period,  as  a  stimulus  to  increase  their  industry,  such 
grants  were  not  considered  as  transferring  to  the  grantee 
any  title  to  the  land,  but  merely  as  agreements  or  contracts 
between  the  lord  and  his  vassal. 

The  old  writ  of  covenant,  adapted  at  that  time  to  the 
recovery  of  the  term,  as  well  as  of  damages,  was  the  only 
remedy  to  which  the  tenants  were  entitled  upon  these 
leases.  But  this  writ  could  only  extend  to  cases  in  which 
there  was  a  breach  of  the  original  contract,  and  the  tenant 
was  therefore  altogether  without  means  of  redress,  when 
dispossessed  of  his  land  by  the  act  of  a  stranger,  not  claiming 
under  the  grantor.  Great  difficulties  also  attended  the  pro- 
ceedings upon  the  writ  of  covenant.  It  only  lay  between 
the  immediate  parties  to  the  grant ;  and,  as  it  frequently 
happened  that  the  tenant  was  dispossessed  by  a  person 
claiming  under  a  subsequent  feoffment  from  his  grantor, 
and  not  by  the  grantor  himself,  he  was  then,  notwithstand- 


ACTION  OF  EJECTMENT.  3 

ing  the  breach  of  the  original  contract,  enabled  to  recover 
only  damages  for  the  injury  he  had  sustained,  but  had  no 
means  of  regaining  possession  of  the  land  from  which  he 
had  been  ousted.(a) 

So  regardless,  however,  was  the  law  during  the  first  ages 
after  the  Conquest,  of  grants  of  this  nature,  that  until  the 
time  of  King  Henry  III.  this  writ  of  covenant  remained  the 
sole  remedy  for  the  grantee,  even  upon  a  breach  of  the 
grant.  In  that  reign  the  first  symptoms  of  a  more  enlighten- 
ed policy  appeared ;  and  by  the  wisdom  of  the  court  and 
council,  a  full  remedy  was  provided  for  a  termor,  who  was 
dispossessed  of  his  land,  against  all  persons  whatsoever, 
claiming  under  the  title  of  the  grantor.(a) 

The  writ  invented  for  this  purpose  was,  according  to 
Bracton,(a)  called  the  writ  of  quare  ejecit  infra  terminum, 
and  required  the  defendant  to  shew,  wherefore  he  deforced 
the  plaintiff  of  certain  lands,  which  A.  had  demised  to  him 
for  a  term  then  unexpired,  within  which  term  the  said  A. 
sold  the  lands  to  the  defendant,  by  reason  of  which  sale  the 
defendant  ejected  the  plaintiff  therefrom. 

The  language,  indeed,  used  by  Bracton,(a)  when  speak- 
ing of  this  writ,  may  at  first  sight  induce  an  opinion,  that  it 
was  intended  as  a  general  remedy  against  all  persons,  even 
strangers,  who  ejected  a  lessee  ;  and  this  interpretation  has 
been  adopted  by  a  learned  writer  on  the  English  law.(6) 
On  a  minute  investigation,  however,  it  will  appear,  that 
Bracton  meant  only  to  include  the  grantor  himself,  or  per- 
sons claiming  under  him.  One  passage  certainly  militates 
against  this  conclusion,  "  Si  autcm  alius  quam  qui  tradidit 
fjecerit,  si  hoc  fecerit  cum  AUTORITATE  ct  VOLUNTATE  tra- 

(a)  Bracton,  b.  4.  f.  220.  (6)  Reeves  Eng.  Law,  Vol.  I.  p.  3-1 1 . 


4  OF  THE  ORIGIN  OF  THE 

dentis,  uterrfue  tenelur  hoc  judltio,  umis  propter  factnm,  et 
alius  propter  autoritatem.  Si  autem  sine  VOLUNTATE,  tune 
tenetur  ejector  utrique,  tarn  domino  proprietors,  quam  fir- 
mario  :  frrmario  per  istud  breve,  domino  proprietors  per  as- 
sisam  norte  disseysina,  ut  units  rehabeat  tcrminum  cum  dam- 
nis,  et  alius  liberum  tenementum  suum  sine  damnis."  But 
the  difficulty  is  removed  by  the  next  sentence,  in  which 
he  says,  "  Si  autem  dominus  proprietatis  tenementum  ad 
Jirmam  traditum  alicui  dederit  in  dominico  tenendum,  scysi- 
nam  eifacere poterit  SALVO  FIRMARIO  TERMING  suo."  And 
it  seems,  therefore,  that  in  the  latter  clause  of  the  passage 
first  above  cited,  particularly  from  the  omission  of  the  word 
autoritate  in  it,  Bracton  only  alluded  to  cases  where  the 
grantor  had  enfeoffed  another,  without  intending  thereby 
to  injure  his  grantee,  and  such  feoffee  afterwards  entered 
upon  him.  This  interpretation  is  also  most  consistent  with 
the  spirit  of  the  times  in  which  Bracton  wrote.  It  was 
then  held  that  a  man  could  not  enter  m  et  armis  into  his 
own  freehold,  and  the  writ  of  quare  ejecit  infra  termmuni 
is  not  a  writ  of  trespass  vi  et  armis,  which,  if  it  had  lain 
against  those  not  having  a  title  to  the  freehold,  it  naturally 
would  have  been.  The  old  authorities(c)  also,  when  des- 

(c)  Thus,  in  Hil.  Term,  3  Edward  I.  other  writ  but  his  writ  of  covenant ; 

"  In  quare  ejecit  plaintiff  shnll  recover  and  although  by  the  law.  a  special 

his  term  and  damages  by  him  sustain-  writ  of  quare.  ejecil  is  ordered  against 

ed  by  reason  of  the  sale."     (Stat.  Ab.  a  stranger,  a  feoffee,  nevertheless  the 

tit.  qua.  ejec.)     In  the  Reg    Brev.  (p.  lessee  is  not  ousted  of  his  writ  of  cove- 

227.)  "  Full  hoc  breve  inreutum  per  nant  against  the  lessor."     This  latter 

dtscretum  viritm  H'hilfielmum  de  Mer-  doctrine  is  exactly  that  laid  down  in 

ton  ul  tenninariut  recuperet  calalla  sua  Bracton.     So,  also,  per  Choke,  J.  (21 

terms  FEOFFATUM."     In  a  case  in  Hil.  Edw.  IV.  10.  30.)     "  Quarc  ejecit,  fyc. 

Term,  46  Edward  III.  4.  12.  per  Ful-  lieth  where  one  is  in  by  title,  ejectione 

thorpe,  Justice.    "  If  a  stranger  oust  a  Jirnuz  where  one  is  by  wrong ;"  and 

lessee  by  reason  of  nfeoffment,  in  that  per  totnin  curiam  (19  Henry  VI.  56. 

case  he  is   put  to  his  action  upon  the  19.)    "  If  a  man  lease  for  years,  and 

writ  of  quare  ejecil  .•"  and  in  the  game  sell  to  F  who  ousts  the  termor,  the  les- 

case,  per  Finchden,  J.  "  In  such  case,  see  shall  have  a  quare  ejecil,  and  re* 

ai  the  common  law,  the  lessee  had  no  cover  his  term  and  damages." 


ACTION  OF  EJECTMENT.  5 

cribing  the  nature  and  effect  of  this  writ,  invariably  speak 
of  it,  as  lying  in  those  cases  only  where  the  ejector  claims 
title  under  the  grantor.  A  sale  of  the  lands  to  the  ejector 
is  also  stated  in  the  body  of  the  writ.  And,  indeed,  if  the 
interpretation  here  contended  for  be  incorrect,  it  seems 
quite  unaccountable,  that,  more  than  half  a  century  after 
the  time  of  Bracton,  a  new  writ,  namely,  the  writ  of  ejec- 
tione  Jirmce,  which  only  gave  the  plaintiff  damages,  and 
did  not  restore  the  term,  should  have  been  invented  for 
lessees  against  strangers,  when  one  so  much  more  beneficial 
was  already  in  existence. 

The  writ  of  quart  ejecit  might  be  drawn  either  as  a  prct- 
etpe,  or*a  si  tefecerit  securwn,  and,  when  first  invented,  the 
prcecipe  was  thought  the  better  mode  of  proceeding,  though 
in  process  of  time,  the  latter  became  more  generally  used. 
It  is,  perhaps,  from  this  circumstance  that  Fitzherbert(d) 
has  considered  the  invention  of  the  writ  to  be  posterior 
to  the  statute  of  Westminster  the  second. (e) 

The  plaintiff,  by  this  writ,  as  by  the  old  writ  of  cove- 
nant, recovered  both  his  term  and  damages,  if  the  term 
were  unexpired,  or  his  damages  only  in  case  of  its  expira- 


(rf)  The  inaccuracy  of  Fitzherbert,  also,  the  same  reasons  are  given  for  it* 

when  speaking  of  this  writ,  is  remark-  origin.    The  inaccuracy  is  evident  also 

able.      He  considers  its  invention  as  from  another  circumstance     \\.\iiih 

posterior  to  the  statute  of  Westminster  DE    MERTON,   called    by   Fitzherbert 

2.  (13.  Edw.  I.)  and  as  intended  to  re-  It'IlUnm  fie  Moreton,  and  in  the  Reg. 

mecly  a  partial  evil,  occasioned  by  the  Brev.  H'illiam  de  .Merlon,  (the  inven- 

writ  of  ejectione  firmer .  (F.  N.B.  458.)  tor  of  the  writ,)  was  Chancellor  in 

Bracton,  however,  who  wrote  in  the  the  reign  of  Henry   III.    (I)ugdale's 

reign  of  Henry  HI.  speaks  of  the  writ  Chron.)  and  dird  in  the  sixth  year  of 

as  in  use  in  his  time,  and  as  having  Edward  I.    (Matt.  \Yestmon.  p.  366.) 

been  invented  to  remedy  the  income-  seven  years  before  the  statute  of  West- 

niences  attendant  on  the  old  writ  of  minster  2.  w  as  enacted, 

covenant.     lu  the  Reg.  Br«v.  (227.)  (e)  F.  N.  B. 438. 


O  OF  THE  ORIGIN  OF  THE 

tion  before  the  judgment ;  but  the  great  advantage  he 
derived  from  it,  was  the  power  of  proceeding  against  third 
persons,  as  well  as  against  the  original  grantor. 

Notwithstanding  this  favourable  alteration,  the  farmer 
was  still  without  remedy  when  dispossessed  by  a  mere 
stranger,  not  claiming  under  his  grantor.  But  an  ouster 
by  a  stranger  could  then  rarely  happen  ;  and  if  at  any  time 
the  vassal  was  so  dispossessed,  he  would  throw  himself  on 
the  protection  of  his  lessor,  abandon  his  own  claim,  and 
leave  the  lord  to  recover  by  a  real  action  both  the  freehold 
and  possession. 

In  process  of  time,  however,  the  vassal  demanded  a  re- 
medy for  himself,  and  in  the  reign  of  King  Edward  II.  or 
in  the  early  part  of  that  of  Edward  lll.(f)  a  writ  was  in- 
vented, which  gave  a  lessee  for  years  a  remedy  (though 
in  some  respects  an  imperfect  one)  against  all  persons 
whatsoever,  who  ousted  him  of  his  term ;  excepting,  in- 
deed, where  the  grantor  himself  ejected  his  lessee,  and 
subsequently  enfeoffed  another,  in  which  case,  the  old  writ 
of  quare  ejecit  was  resorted  to. 

This  new  writ  was  a  writ  of  trespass  in  its  nature.  The 
process  upon  it,  as  upon  all  other  writs  of  trespass,  was  by 
attachment,  distress,  and  process  of  outlawry.  It  called 
upon  the  defendant  to  show,  wherefore,  with  force  and 
arms,  he  entered  upon  certain  lands  which  had  been  de- 
mised to  the  plaintiff  for  a  term  then  unexpired,  and  eject- 
ed him  from  the  possession  thereof;  and  comprised  all 
cases,  with  the  single  exception  already  mentioned,  in 

(/)  The  first  recorded  instance  of  44th  year  of  Edward  III.  (Trin.  44 
an  action  of  ejeclione  fintuc,  is  in  the  Edw.  III.  22.  26.) 


ACTION  OF  EJECTMENT.  7 

which  the  second  lessee,  coming  into  possession  by  means 
of  a  title,  could  not  be  said  to  be  a  trespasser.  Even  the 
grantor  was  liable  to  be  sued  upon  this  new  writ,  notwith- 
standing the  old  doctrine,  that  a  man  could  not  enter  vi 
ct  armis  into  his  own  freehold. (g)  As,  however,  the 
plaintiff  did  not  possess  a  freehold  interest,  his  title  to  the 
lands  was  only  so  far  acknowledged  in  this  action,  as  to 
give  him  damages  for  the  injury  he  had  sustained,  but  not 
to  restore  to  him  the  possession  of  his  term. 

It  is  upon  this  writ,  though  apparently  so  dissimilar  from 
the  present  practice,  that  the  modern  remedy  by  eject- 
ment is  founded* 

Whilst  the  feudal  system  continued  in  its  vigour,  and  es- 
tates for  years  retained  their  original  character,  but  little 
inconvenience  resulted  to  tenants  from  this  imperfect  re- 
medy. When,  however,  the  feudal  policy  declined,  and 
agriculture  became  an  object  of  legislative  regard,  the  va- 
lue and  importance  of  estates  of  this  nature  considerably 
increased,  and  it  was  necessary  to  afford  to  lessees  for  years 
a  more  effectual  protection.  It  then  became  the  practice 
for  leaseholders,  when  disturbed  in  their  possessions,  to 
apply  to  courts  of  equity  for  redress,  and  to  prosecute 
suits  against  the  lessor  himself,  to  obtain  a  specific  per- 
formance of  the  grant,  or  against  strangers  for  perpetual 
injunctions  to  quiet  the  possession  ;  and  these  courts  would 
then  compel  a  restitution  of  the  land  itself  to  the  party  im- 
mediately injured.  (A) 

The  courts  of  common  law  soon  afterwards  adopted  this 
method  of  rendering  substantial  justice  :  not  indeed  by  the 

(g)  F.  N.  B.  606,  (A)  Gilb.  Eject,  p.  2. 


8  OF  THF.  ORIGIN  OF  THE 

invention  of  a  new  writ,  which  perhaps  would  have  beei 
the  best  and  most  prudent  method,  but  by  adapting  the 
one  already  in  existence  to  the  circumstances  of  the 
times ;  and  introducing,  in  the  prosecution  of  a  writ  of 
ejectment,  a  species  of  remedy  neither  warranted  by  the 
original  writ,  nor  demanded  by  the  declaration,  namely,  a 
judgment  to  recover  the  term,  and  a  writ  of  possession 
thereupon. 

It  is  singular,  that  neither  the  causes  which  led  to  this 
important  change,  nor  the  principles  upon  which  it  was 
founded,  are  recorded  in  any  of  the  legal  authorities  of 
those  times.  It  is  difficult,  if  not  impossible,  to  ascertain 
with  accuracy  the  precise  period  when  the  alteration  itself 
took  place  ;  although  it  certainly  must  have  been  made  be- 
tween the  years  1455  and  1499,  since,  in  the  former  year, 
it  is  said  by  one  of  the  judges, (i)  that  damages  only  can 
be  recovered  in  ejectment ;  and  an  entry  of  a  judgment  is 
still  extant,  given  in  the  latter  of  those  years,  that  the  plain- 
tiff in  ejectment  shall  recover  both  his  damages  and  big 
term.(A-)  It  is  said,  indeed,  in  argument  as  early  as  the 
year  1458,  that  the  term  may  be  recovered  in  ejectment, 
but  no  reason  is  assigned  for  the  assertion,  nor  is  any  de- 
cision upon  the  point  on  record  until  the  time  of  the  entry 
already  mentioned. (I) 

But,  whatever  might  be  the  causes  which  occasioned 
this  alteration,  the  effects  they  produced  were  highly  im- 
portant. A  new  efficacy  was  given  to  the  action  of  eject- 
ment, the  old  real  actions  fell  into  disuse,  and  in  the  subse- 


(t)  Per  Choke,  J.    Mich.  33  Hen.        (0  Brooke's  Ab.  tit.  Quarc  ejecil, 
VI   42. 19.  folio  167. 

(k)  Kast.  Eut.  253,  (a) 


ACTION  OP  EJECTMENT.  9 

periods  of  our  history,  the  action  of  ejectment 
became  the  regular  mode  of  proceeding  for  the  trial  of 
possessory  titles. 

That  an  action  of  ejectment,  by  means  of  this  alteration 
in  its  judgment,  might  restore  termors  to  possession  who 
had  been  actually  ejected  from  their  lands,  is  sufficiently 
obvious ;  but  it  is  not,  perhaps,  so  evident  how  the  same  pro- 
ceeding could  be  applicable  to  a  disputed  title  of  freehold> 
or  why,  as  soon  after  happened,  the  freeholder  should  have 
adopted  this  novel  remedy.  No  report  of  the  case  in 
which  this  bold  experiment  was  first  made  is  extant ;  but 
from  the  innumerable  difficulties  which  attend  real  actions, 
it  is  not  surprising  that  the  freeholder  should  take  advan- 
tage of  any  fiction  which  enabled  him  to  avoid  them  ;  and 
as  the  Court  of  Common  Pleas  possessed  an  exclusive  right 
of  judicature  in  matters  of  real  property,  it  is  probable  that 
the  experiment  originated  in  the  Court  of  King's  Bench, 
as  an  indirect  method  of  giving  to  that  court  a  concurrent 
jurisdiction  with  the  Common  Pleas.  But,  however  this 
may  be,  the  experiment  succeeded,  and  the  uses  of  the 
action,  as  well  as  its  nature,  were  changed. 

When  first  the  remedy  was  applied  to  the  trial  of  disput- 
ed titles,  the  proceedings  were  simple  and  regular,  differ- 
ing but  little  from  those  previously  in  use,  when  an  eject- 
ment was  brought  to  recover  the  damages  of  an  actual 
trespass.  The  right  to  the  freehold  could  only  be  deter- 
mined in  an  indirect  manner.  It  was  a  term  which  was  to 
be  recovered  by  the  judgment  in  the  action,  and  it  was 
therefore  necessary  that  a  term  should  be  created  ;  and  as 
the  injury  complained  of  in  the  writ  was  the  loss  of  the 
possession,  it  was  also  necessary  that  the  person  to  whom 
the  term  was  given,  should  be  ejected  from  the  lands. 

2 


10  OF  THE  ORIGIN  OF  THE 

In  order  to  obtain  the  first  of  these  requisites,  namely, 
u  term,  the  party  claiming  title  entered  upon  the  disputed 
premises,  accompanied  by  another  person,  to  whom, 
whilst  on  the  lands,  he  sealed  and  delivered  a  lease  for 
years.  This  actual  entry  was  absolutely  necessary  ;  for, 
according  to  the  old  law  of  maintenance,  it  was  a  penal 
offence  to  convey  a  title  to  another,  when  the  grantor  him- 
self was  not  in  possession.  And,  indeed,  it  was  at  first 
doubted,  whether  this  nominal  possession,  taken  only  for 
the  purpose  of  trying  the  title,  was  sufficient  to  excuse 
him  from  the  penalties  of  that  offence. (m) 

It  is  from  the  necessity  of  this  entry,  also,  that  the  re- 
medy by  ejectment  is  confined  to  cases  in  which  the  claim- 
ant has  a  right  to  the  possession.  When  only  a  right  of 
property,  or  a  right  of  action,  remained  to  him,  the  entry 
would  be  illegal,  and  consequently  not  sufficient  to  enable 
the  party  making  it  to  convey  a  title  to  his  lessee :  and  as 
the  principles  of  the  action  still  remain  the  same,  although 
its  proceedings  are  changed,  the  right  to  make  an  entry 
continues  to  be  requisite,  though  the  entry  itself  is  no 
longer  necessary. 

The  lessee  of  the  claimant,  having  acquired  a  right  to 
the  possession,  by  means  of  the  lease  already  mentioned, 
remained  upon  the  land,  and  then  the  person  who  came 
next  upon  the  freehold,  animo  possidendi,  of  according  to 
the  old  authorities,  even  by  chance,(n)  was  accounted  an 
ejector  of  the  lessee,  and  a  trespasser  on  his  possession. 
A  writ  of  trespass  and  ejectment  was  then  served  upon  the 
ejector  by  the  lessee.  The  cause  regularly  proceeded  to 
trial  as  in  the  common  action  of  trespass  ;  and  as  the  K>- 

(m)  1  Cb.  Rep.  App«nd.  29  (n)  1  Lil.  Prac.  Reg.  679. 


ACTION  OF  EJECTMENT.  11 

see's  claim  could  only  be  founded  upon  the  title  of  his  lessor, 
it  was  necessary  to  prove  the  lessor's  interest  in  the  land, 
to  enable  the  plainlihr(the  lessee)  to  obtain  a  verdict.  The 
claimant's  title  was  thus  indirectly  determined ;  and,  al- 
though the  writ  of  possession  must  of  course  have  been 
issued  in  the  plaintiff's  name,  and  not  in  his  own,  yet  as 
the  plaintiff  had  prosecuted  the  suit  only  as  the  lessor's 
friend,  he  would  immediately  give  up  to  him  the  possession 
of  the  lands. 

In  the  infancy  of  the  experiment,  this  mode  of  proceed- 
ing could  be  attended  with  no  ill  consequences.  As  the 
party  previously  in  possession,  must,  in  contemplation  of 
the  law,  be  upon  the  lands,  and  certainly  animo  possidendi, 
the  friend  of  the  claimant  was  allowed  to  consider  him  as 
an  ejector,  and  make  him  the  defendant  in  the  action. 
When,  however,  the  remedy  became  more  generally  used, 
this  simple  method  was  found  to  be  productive  of  consider- 
able evil.  It  was  easy  for  the  claimant  to  conceal  the 
proceedings  from  the  person  in  possession,  and  to  procure 
a  second  friend  to  enter  upon  the  lands,  and  eject  his  les- 
see immediately  after  the  execution  and  delivery  of  the 
lease.  The  lessee  would  then  commence  his  suit  against 
this  ejector,  and  the  party  in  possession  might  consequently 
be  ousted  of  his  lands,  without  any  opportunity  of  defend- 
ing his  title.  To  check  this  evil,  a  rule  of  court  was  made, 
forbidding  a  plaintiff  in  ejectment  to  proceed  against  such 
third  person,  without  giving  a  previous  notice  of  the  pro- 
ceedings to  the  party  in  possession ;  and  it  was  the  prac- 
tice for  such  party,  on  the  receipt  of  this  notice,  if  he  had 
any  title  to  the  lands,  to  apply  to  the  court  for  permission 
to  defend  the  action  ;  which  application  was  uniformly 
granted,  upon  his  undertaking  to  indemnify  the  defendant 
(the  third  person)  from  the  expenses  of  the  suit.  The 


12  OF  THE  OKIGIN  OF  THE 

action,  however,  proceeded  in  the  name  of  such  defendant, 
though  the  person  in  possession  was  permitted  at  the  trial 
to  give  evidence  of  his  own  title. 

A  considerable  alteration  in  the  manner  of  proceeding  in 
the  action  was  occasioned  by  this  rule,  although  it  was 
only  intended  to  remedy  a  particular  evil.  It  became  the 
general  practice  to  have  the  lessee  ejected  by  some  third 
person,  since  called  the  casual  ejector,  and  to  give  the 
regular  notice  to  the  person  in  possession,  instead  of  mak- 
ing him,  as  before,  the  trespasser  and  defendant.  A  rea- 
sonable time  was  allowed  by  the  courts,  for  the  person  in 
possession,  after  the  receipt  of  the  notice,  to  make  his  ap- 
plication for  leave  to  defend  the  action,  and,  if  he  neglect- 
ed to  do  so,  the  suit  proceeded  against  the  casual  ejector, 
as  if  no  notice  had  been  necessary. 

The  time  when  this  rule  was  made  is  unknown,  but  as 
the  evil  it  was  intended  to  remove  must  soon  have  been 
discovered,  it  probably  was  adopted  shortly  after  the  reme- 
dy grew  into  general  use.(o)  It  seems,  also,  to  have  been 
the  first  instance  in  which  the  courts  interfered  in  the  prac- 
tice of  the  action,  and  is  therefore  remarkable  as  the  foun- 
dation of  the  fictitious  system  by  which  it  is  now  conducted. 

In  this  state,  with  the  exception  of  a  few  practical  regu- 
lations, not  necessary  to  be  here  noticed,  the  action  of 
ejectment  continued  until  the  time  of  the  Commonwealth. 
Much  trouble  and  inconvenience,  however,  attended  the 
observance  of  the  different  formalities.  If  several  persons 
were  in  possession  of  the  disputed  lands,  it  was  necessary 
to  execute  separate  leases  upon  the  premises  of  the  dif- 

(o)  Fairc-laim,  d.  Fowler,  v.  Shamiitle,  Burr.  1290 — 1297- 


ACTION  OF  EJECTMENT.  IS 

lerent  tenants,  and  to  commence  separate  actions  upon  the 
several  leases.(p)  Difficulties  also  attended  the  making 
of  entries,  and  the  action  of  ejectment  had,  by  this  time, 
grown  into  such  general  use,  as  to  make  these  inconve- 
niences sensibly  felt.  A  remedy,  however,  was  discovered 
for  them  by  Lord  Chief  Justice  Rolle,  who  presided  in  the 
Court  of  Upper  Bench  during  the  Protectorate ;  and  a 
method  of  proceeding  in  ejectment  was  invented  by  him, 
which  at  once  superseded  the  ancient  practice,  and  has 
by  degrees  become  fully  adapted  to  the  modern  uses  of  the 
action,  (q) 

By  the  new  system,  all  the  forms,  which  we  have  been 
describing,  are  dispensed  with.  No  lease  is  sealed,  no  en- 
try or  ouster  really  made  ;  the  plaintiff  and  defendant  in  the 
suit  are  merely  fictitious  names,  and  in  fact  all  those  preli- 
minaries are  now  only  feigned,  which  the  ancient  practice 
required  to  be  actually  complied  with. 

^ 

An  inquiry  into  the  numerous  regulations  which  have 
been  made  for  the  improvement  of  the  modern  practice, 
must  be  reserved  for  a  future  part  of  this  work ;  but  it 
may  be  useful  to  give  in  this  place  a  brief  outline  of  the 
system,  although  a  detailed  account  will  be  hereafter  ne- 
cessary. 

•*   -•;  -m^.  ;j    woiic!  }*i- 

A.,  the  person  claiming  title,  delivers  to  #.,  the  person 
in  possession,  a  declaration  in  ejectment,  in  which  C.  and 
D.,  two  fictitious  persons,  are  made  respectively  plaintiff 
and  defendant ;  and  in  which  C.  states  a  fictitious  demise 
of  the  lands  in  question  from  A.  to  himself  for  a  term  of 


(p)  Co.  Litt.  252.    Argoll  v.  Che-         (9)   Styles,  Prac.  Reg.   108.  (cd. 
neyt  Palm.  402.  1667.) 


14  OF  THE  ORIGIN  OF  THE 

years,  and  complains  of  an  ouster  from  them  by  D.  during 
its  continuance.  To  this  declaration  is  annexed  a  notice, 
supposed  to  be  written  and  signed  by  D.,  informing  B.  of 
the  proceedings,  and  advising  him  to  apply  to  the  court  for 
permission  to  be  made  defendant  in  his  place,  as  he,  having 
no  title,  shall  leave  the  suit  undefended.  Upon  the  receipt 
of  this  declaration,  if  B.  do  not  apply  within  a  limited  time 
to  be  made  defendant,  he  is  supposed  to  have  no  title  to 
the  premises ;  and  upon  an  affidavit  that  a  declaration  has 
been  regularly  served  upon  him,  the  court  will  order  judg- 
ment to  be  entered  against  D.,  the  casual  ejector,  and  pos- 
session of  the  lands  will  be  given  to  .#.,  the  party  claiming 
title.  When,  however,  B.  applies,  pursuant  to  the  notice, 
to  defend  the  action,  the  courts  annex  certain  conditions  to 
the  privilege.  Four  things  are  necessary  to  enable  a  per- 
son to  support  an  ejectment,  namely,  title,  lease,  entry,  and 
ouster;  and  as  the  three  latter  are  only  feigned  in  the  modern 
practice,  C.  (the  plaintiff)  would  be  nonsuited  at  the  trial  if 
he  were  obliged  to  prove  them.  The  courts,  therefore, 
compel  B.  if  made  defendant,  to  enter  into  a  rule,  generally 
termed  the  consent-rule,  by  which  he  undertakes,  that  at 
the  trial  he  will  confess  the  lease,  entry,  and  ouster,  to  have 
been  regularly  made,  and  rely  solely  upon  the  merits  of  hirf 
title  ;  and,  lest  at  the  trial  he  should  break  this  engagement, 
another  condition  is  also  added,  that  in  such  case  he  shall 
pay  the  costs  of  the  suit,  and  shall  allow  judgment  to  be 
entered  against  D.,  the  casual  ejector.  These  conditions 
being  complied  with,  the  declaration  is  altered,  by  making 
B.  the  defendant  instead  of  Z).,  and  the  cause  proceeds  to 
trial  in  the  same  manner  as  in  other  actions. 

The  advantages  resulting  from  this  method  are  obvious : 
the  claimant  is  exempted  from  the  observance  of  useless 


ACTION  OF  EJECTMENT.  15 

forms,  and  the  tenant  admits  nothing  which  can  prejudice 
the  real  merits  of  the  case. 

It  could  not,  indeed,  be  expected  that  a  change  so  exten- 
sive, should,  in  the  first  instance,  be  entirely  free  from 
defects,  nor  that  it  would  not,  like  other  innovations,  occa- 
sion some  inconvenience  when  first  introduced.  For  a  few 
years  after  its  invention,  the  courts  seem  occasionally  to 
have  been  confused  between  the  ancient  and  modern  sys- 
tems, and  not  to  have  established,  so  distinctly  as  might  have 
been  desired,  the  principles  which  were  to  regulate  the 
proceedings  they  had  so  newly  adopted.  The  action  has 
however,  now  attained  a  considerable  degree  of  perfection. 
Its  principles  are  clearly  understood,  and  its  practice  is  re- 
duced to  a  regular  and  settled  system.  The  legislature  has 
frequently  interfered  to  correct  its  deficiencies.  The  courts 
continue  to  regard  it  with  great  liberality ;  and  the  remedy 
by  ejectment  is,  at  the  present  time,  a  most  safe  and  expedi- 
tious method  of  trying  possessory  titles,  unembarrassed  by 
the  difficulties  attendant  on  real  actions,  and  well  adapted 
to  the  purposes  of  substantial  justice. 


16 


CHAPTER  II. 


OF  WHAT  THINGS  AN  EJECTMENT  WILL  LIE,  AND  HOW  THEY 
ARE  TO  BE  DESCRIBED. 


BY  the  common  law,  an  ejectment  will  not  lie  for  any 
thing,  whereon  an  entry  cannot  be  made,  or  of  which  the 
sheriff  cannot  deliver  possession;  or,  in  other  words,  it  is 
only  maintainable  for  corporeal  hereditaments.  Thus,  an 
ejectment  will  not  lie  for  a  rent,  an  advowson,  a  common 
in  gross,  or  pur  cause  de  vicinage,  or  any  other  thing 
which  passes  only  by  grant.  Tithes,  indeed,  though  an  in- 
corporeal inheritance,  may  be  recovered  by  this  action,  but 
the  right  of  maintaining  an  ejectment  for  them,  does  not 
arise  from  the  common  law,  but  is  given  by  the  provisions 
of  the  statute  32  Hen.  VIII.  c.  7. 

It  was  formerly  holden  that  an  ejectment  did  not  lie  for  a 
chapel,  though  a  corporeal  hereditament,  because  it  was 
res  sacra,  and,  therefore,  not  demisable  ;  but  this  doctrine 
js  now  exploded,  though,  in  point  of  form,  a  chapel  should 
still  be  demanded  as  a  messuage.(r)  A  church  may  be  also 
recovered  in  an  ejectment  when  so  demanded  ;(s)  and  it  is 


{r)  Harpwr's  case,  11  Co.  B5,  (b).        f»)  Hillingsicorth  r.  Brewster.  Salk. 
Tfiyn  v.  Thyn,  Styles,  101.  Doc.  Plac.    26<5. 
flM. 


Or  WHAT  THINGS  AN  EJECTMENT  WILL  LIE.      17 

In  one  case  said  in  argument,  that  after  collation,  ejectment 
will  lie  for  a  prebcndal  stall. (/) 

• 

A  common,  appendant  or  appurtenant,  may  be  recovered 
in  an  ejectment,  brought  for  the  lands  to  which  it  is  appen- 
dant or  appurtenant,  provided  such  right  of  common  l>e 
mentioned  in  the  description  of  the  premises ;  because,  he 
who  has  possession  of  the  land,  has  alr-o  possession  of  the 
common,  and  the  sheriff,  by  giving  possession  of  the  one, 
executes  the  writ  as  to  the  other.  But  it  may  be  prudent 
to  state  in  the  description,  that  the  common  so  claimed  is 
a  common  uppendant  or  appurtenant,  although  it  has  been 
held  after  verdict,  that  an  ejectment  for  lands,  and  albO  for 
K  common  of  pasture,"  generally  is  sutficient.(M) 

An  ejectment  will  also  lie  for  a  boilary  of  salt,  although 
by  the  grant  of  a  boilary  of  salt,  the  grantee  is  only  entitled 
to  a  certain  proportion  of  the  number  of  backets  of  .-alt 
water  drawn  out  of  a  particular  salt-water  well ;  for  by  the 
grant  of  a  boilary  of  salt,  the  soil  shall  pass,  inasmuch  as  it  ia 
the  whole  profit  of  the  soil.(v) 

Upon  the  same  principle  an  ejectment  may  be  maintained 
for  a  coal  mine  ;  for  it  is  not  to  be  considered  as  a  bare  profit 
apprender,  but  as  comprehending  the  ground  or  soil  itself, 
which  may  be  delivered  in  execution ;  and  though  a  man 
in  iv  have  a  right  to  the  mine  without  any  title  to  the  soil, 
yet  the  mine  being  fixed  in  a  certain  place,  the  sheriff  has 
a  thing  certain  before  him,  of  which  he  can  deliver  posses* 
siou.(w) 

CO  The  Km?  v.  The  Bithop  of  ban-  (r)  Smith  v.  Barrett,  Sid.  161.  S.  C, 

don,  MViU  II.  14.  1  Ler.  114.  Co.  Lin.  4,  (6). 

(u)  /.TArrv. //<,r,  Cas.  Temp.  Hard.  («•)  r»my/i  v.  kint.to,  Cm.  Jac.  150. 

127.  JfHnumv.Uoldmjiftu^Stna.64.  C'amyn  r.  H'hcaliy,  iNoy,  121. 

1 


Itf  OP  WHAT  THINGS 


In  the  old  cases  it  is  holdcn,  that  an  ejectment  will  not 
lie  for  a  fishery,  because  it  is  only  a  profit  apprender  ;(x) 
but  it  is  said  by  Ashhurst,  J.,  in  the  case  of  The  King  v.  the 
Inhabitants  of  Old  Arlesford,(y)  "  there  is  no  doubt  but  that 
a  fishery  is  a  tenement ;  trespass  will  lie  for  an  injury  to  it, 
and  it  may  be  recovered  in  ejectment." 

But  an  ejectment  will  not  lie  for  a  water-course,  or  rivu- 
let, though  its  name  be  mentioned,  because  it  is  impossible 
to  give  execution  of  a  thing  which  is  transient,  and  always 
running.[l]  When,  however,  the  ground  over  which  the 
rivulet  runs,  is  the  property  of  the  claimant,  the  rivulet 
may  be  recovered,  by  laying  the  action  for  "  so  many  acres 
of  land  covered  with  water."(r)  An  ejectment  may  be 
maintained  for  a  pool,  or  pit  of  water,  because  those  words 
comprehend  both  land  and  water.(a) 

The  owner  of  the  soil  may  maintain  an  ejectment  for 
land,  which  is  part  of  the  king's  highway  ;  because,  though 
the  public  have  a  right  to  pass  over  it,  yet  the  freehold  and 
all  the  profits  belong  to  the  owner.  He  must,  however, 


(x)  Molinenux  v.  Molintaux,  Cro.  (y)  1  T.  R.  858. 

Jac.  144.    Herbert  v.  Laughlyn,  Cro.  («)  Ckallenor  v.  Thomas,  Yelv.  148. 

Car.  492.     Waddy  v.  JYewton,  8  Mod.  (a)  Ibid.  Co.  Litt.  6,  (6). 
275—277. 


[1]  If  a  grantor  reserve  the  right  of  erecting  a  mill-dam  for  a  certain 
distance  on  a  creek,  "and  to  occupy  and  possess  the  premises,"  without  hin- 
drance or  molestation  from  the  grantee,  or  his  heirs,  he  has  such  an  inte- 
rest in  the  land  reserved  as  will  support  ejectment.  Jackson  v.  Buel,  9  Johnson, 
298.  In  this  case  the  Court  say,  "wherever  a  right  of  entry  exists,  and  the 
interest  is  tangible,  so  that  possession  can  be  delivered,  an  ejectment  will  lie."  But 
the  grant  of  a  privilege  to  erect  a  machine  and  building  on  land,  without 
defining  the  place  where  they  are  to  be  erected,  or  the  quantity  of  ground 
which  is  to  be  occupied,  does  not,  without  actual  entry  or  location,  confer 
such  a  right,  as  to  support  ejectment.  Jackson  v.  May,  16  Johnson,  184. 


AN  EJECTMENT  WILL  LIE.  19 

. 

recover  the  land,  and  the  sheriff  give  possession  of  it,  sub- 
ject to  the  public  easement.(6)  [2] 

An  ejectment  will  lie  pro  prima  tonsura,  that  is  to  say,  if 
a  man  has  a  grant  of  the  first  grass  which  grows  on  the  land 
every  year,  he  may  maintain  ejectment  against  him  who 
withholds  it  from  him.(c)  So  also  a  demise  of  the  hay-grass 
and  after-math  is  sufficient  to  support  an  ejectment.(J) 
And  the  principle  seems  to  be  this,  that  the  parties  in  these 
cases,  being  entitled  to  all  the  profits  of  the  land  for  the 
time  being,  are  entitled  also  for  the  same  time  to  the  land 
itself;  and  no  man  can  enter  thereon,  whilst  they  are  so  en* 
titled,  without  being  a  trespasser.  But  the  ejectment  should 
not  be  brought  for  the  land  generally,  but  for  the  first  grass 
or  after-math  thereof  as  the  case  may  be  ;  although  where 
the  demise  was  for  so  many  acres  of  pasture  land,  it  was 
held  sufficient  for  the  lessor  of  the  plaintiff,  in  the  first  in- 
stance, to  show  that  he  was  entitled  to  the  prima  tonsura 
thereof,  because  the  first  grass  being  the  most  signal  profit, 
the  freehold  of  the  land  shall  be  esteemed  to  be  in  him  who 
has  it,  until  the  contrary  is  shown. (e) 

A  right  to  the  herbage  will  also  be  sufficient  to  support  an 
ejectment,  because,  he  who  has  a  grant  of  the  herbage,  has 
a  particular  interest  in  the  soil,  although  by  such  grant  the 


(6)   Goodtitle,  d.  Clutter,  Y.  Alktr,        (d)  Wheeler  v.  Toulson,  Hard.  330. 
Burr.  133.  146.  (e)  Rex  r.  Inhabitant*  of  Stoke,  2  T. 

(c)  Ward  v.  Pttifer,  Cro.  Car.  362.     R.  451. 


[2]  The  owner  of  land,  over  which  a  highway  is  laid  out,  may  use  the  land 
in  any  manner,  not  inconsistent  with  the  public  right  or  easement,  and  may 
maintain  ejectment  for  it.  Cortelyou  r.  Van  Brundt,  2  Johnson,  357.  Jackson  r. 
llathaieari,  15  Johnson,  447.  Perley  v.  Chandler,  6  Man.  Rep.  454.  Com- 
monwcaltti  v.  Pelcrt,  2  Mas*.  Rep.  125. 


20  OF  WHAT  THINGS 

soil  itself  does  not  pass.     But  the  ejectment  should  be  for 
the  herbage  of  the  land,  and  not  for  the  land  itself.(/) 

In  like  manner  an  ejectment  will  lie  for  the  pasture  of  a 
hundred  sheep. (g) 

But  a  right  to  the  pannage  is  not  enough,  because  pan- 
nage is  only  the  mast  which  falls  from  the  trees,  and  not 
part  of  the  soil  itself.(A) 

With  respect  to  the  manner  in  which  the  disputed  pre- 
mises should  be  described  in  an  ejectment,  no  determinate 
rule  exists ;  nor  is  it  easy  to  discover  from  the  adjudged 
Cases,  any  principle  which  can  guide  us  on  the  subject.  It 
is  very  frequently  said,  in  general  terms,  that  the  descrip- 
tion shall  be  sufficiently  certain  ;  but  the  degree  of  certainty 
required,  particularly  in  the  more  ancient  cases,  seems  to 
depend  upon  caprice  rather  than  principle.  In  the  earlier 
stages  of  the  remedy,  when  ejectments  were  compared  to 
real  actions,  and  arguments  were  drawn  from  analogy  with 
them,  a  practice  which  obtained  until  after  the  reign  of 
James  I.,  much  greater  certainty  was  required  than  is  now 
necessary  ;  and  it  appears,  that  when  the  action  was  first 
invented,  as  much  certainty  was  requisite  as  in  a  pracipe 
quod  rcddat.(i)  The  courts,  indeed,  soon  relaxed  this 
severity,  and  allowed  many  descriptions  to  be  sufficient  in 
an  ejectment,  which  would  have  been  held  too  uncertain  in 
a  prcecipc ;  as,  for  instance,  an  ejectment  for  a  hop-yard 
was  held  good  ;  so  also  for  an  orchard,  though  in  a  praripe 
it  should  be  demanded  as  a  garden  ;(.;)  yet,  notwithstanding 

(/)  Whttlcr  v.  Tnitfuon,  Hard.  330.         (i)  Afaedunoch  v.  Sta/ord,  2.  Roll- 
(£)   /?»ony.  2  !)«!.  95.  Rep.  166. 

(A)  Peniblcv.  Sterne,  1  Lev.  212,3.  (j)  Wright  v.  Whcatley,  Noy,  37.  S. 
8,  C.  1  Sid.  416,  C.  Cro.  Elisr..  864.  Royxlon  v.  Eedettan, 

Cro.  Jac.  654.  S.  C.  Palm.  337. 


i 

AN  EJECTMENT  WILL  LIE. 

this  alteration,  it  was  considered  an  established  principle, 
until  within  the  last  fifty  years,  that  the  description  must  be 
so  certain  as  to  enable  the  sheriff  exactly  to  know,  without 
any  information  from  the  lessor  of  the  plaintiff,  of  what  to 
deliver  possession. (&)  Amongst  other  salutary  regulations, 
however,  which  the  wisdom  of  modern  times  has  introduced 
into  this  action,  the  abolition  of  the  above-mentioned 
maxim  may  be  reckoned  ;  and  it  is  now  the  practice  for  the 
sheriff  to  deliver  possession  of  the  premises  recovered,  ac- 
cording to  the  directions  of  the  claimant,  who  therein  acts 
at  his  own  peril. (/) 

Few  cases  are  to  be  found  in  the  modern  books,  wherein 
pointa  respecting  the  certainty  of  description  have  arisen, 
uu»t  the  authority  of  the  old  e;i-e-  i-  \cry  doubtful.  The 
degree  of  cert;iinty  formerly  required  was  much  greater  than 
is  now  necessary,  and  it  is  not  improbable  that  many  of  the 
old  decisions  would  be  overruled,  should  they  again  come 
under  the  consideration  of  the  courts. (m) 

Lands  will  be  sufficiently  described  by  the  provincial 
terms  of  the  counties  in  which  they  lie.  Thus,  an  eject- 
ment may  be  maintained  for  "  five  acres  of  alder  carr" 
in  Norfolk : — alder  carr,  in  that  county,  signifying  land 
covered  with  alders.  So,  also,  in,  Suffolk,  for  a  beast  gate  ; 
and  in  Yorkshire,  for  cattle  gates. (n) 

The  same  principle  applies  to  ejectments  in  Ireland,  and 
terms  used  in  that  country  will  be  sufficiently  certain,  when 
writs  of  error  are  brought  therefrom  in  this  kingdom. 

(k)  Bhuhrrr  v.  M>-r{.rr,imbe,  2  (m)  SI.  John  v.  Cumyn,  Yclv.  117, 

Ravin.  147O.  ami  tin; <-a<os  there  cited.  Cvllinff!>am  v.  King,  Burr.  623. 

(/)  fottingliatn  v.  f\ii,y,  Him.  623.  i>0  linnet  v.  I'cterioR,  Stran.  1063- 

630.  Connor  T.  Wat,  Burr.  2672.  Bennii^tvn  T.  Goodtitlc,  Hi.  1084. 


42  OF    WHAT  THINGS 

Thus,  an  ejectment  will  lie  in  Ireland,  for  a  township,  for  a 
kneave,(o)  or  quarter  of  land,  or  for  so  many  acres  of  bog  or 
ofmountain,(/j)  the  word  mountain  being  in  that  kingdom, 
rather  a  description  of  the  quality,  than  the  situation  of 
land,  (q) 

But  an  ejectment  in  England  for  a  hundred  acres  of 
mountain,  or  a  hundred  acres  of  waste,  has  been  held  to 
be  bad  for  uncertainty,  because  both  waste  and  mountain 
comprehend  in  England  many  sorts  of  land.(r) 

It  is  no  objection  to  a  description  that  the  premises  are 
twice  demanded  in  the  same  demise. (s) 

An  ejectment  will  not  lie  for  a  tenement,  because  many 
incorporeal  hereditaments  are  included  in  that  appella- 
tion,^) and,  therefore,  the  description  is  not  certain  enough ; 
nor  will  an  ejectment  lie  for  a  messuage  or  tenement,  for 
the  signification  of  the  word  tenement  being  more  exten- 
sive than  that  of  the  word  messuage,  it  is  not  sufficiently 
certain  what  is  intended  to  be  demanded  in  the  ejectment.(M) 
It  is  also  holden  that  an  ejectment  will  not  lie  for  a  mes- 
suage and  tenement. (v) 


(o)  Cotlingham  T  King,  Burr.  623.  (u)  Ashwarth  v.  Stanley,  Styl.  364. 

630.  Wood  v.  Payne,  Cro.   Eliz.  186.     Ro- 

(p)  Barnes  v.  Peterson,  Stran.  1063.  cheater  v.  Rickhouse,  Pop.  203. 

Bennington  v.  Goodtitle,  Ib.  1084.  (r)  Doe,  d.  Brodthau:,  v.  Plowman, 

(q)   Kildare   v.   Fisher,   Stran.   71.  1  East,  441.  and  the  cases  there  cited. 

vide   cont.  Macdonnogh   v.    Stafford,  In  the  case  of  Goodwright,d.  Welch,  v. 

Palm.  100.  S.  C.  2  Roll.  Rep.  189.  St.  Flood,  (3  Wils.  23.,)  in  which  a  motioii 

.Mm  v.  Comyn,  Yelv.  117.  was  made  to  arrest  the  judgment,  be- 

(r)  Hancock  v.  Price,  Hard.  67.  cause  the  plaintiff  had  declared  of  a 

(s)  Warren  v.  Wakeley,  2  Roll.  Rep.  messuage  or  tenement,  the  Court  en- 

432.  deavoured  to  get  over  the  objection, 

(0  Goodlitlc  v.  Walton,  Stran.  834.  and  took  time  for  consideration,  but 

Goplctlon  T.  Piper,  Ld.  Rayra.  191.  ultimately  thought  themselves  bound 


AN  EJECTMENT  WILL   LIE.  23 

But  an  ejectment  for  a  messuage  or  tenement,  with  other 
words  expressing  its  meaning,  is  good,  as  a  messuage  or 
tenement  called  the  Black  Swan ;  for  the  addition  reduce* 
it  to  the  certainty  of  a  dwelling-house. (IP) 

So  also  an  ejectment  for  a  messuage  or  burgage,  is  good ; 
because  both  signify  the  same  thing  in  a  borough. (x) 

An  ejectment  for  four  corn  mills,  without  saying  of  what 
kind,  whether  wind-mills,  or  water-mills,  is  good  ;  for  the 
precedents  in  the  register  are  so.(?/) 

An  ejectment  will  lie  for  a  stable  and  cottage,(z)  and 
also  for  a  house  ;  though  in  zpracipe  it  ought  to  be  demand- 
ed by  the  name  of  a  messuage.(a) 

Ejectment  of  a  place  called  a  passage-room  is  certain 


by  the  adjudged  cases,  and  reluctantly  plaintiff  had  declared  for  a  messuage 
arrested  the  judgment.  Afterwards,  and  tenement,  and  the  verdict  was  en- 
in  Doe,  d.  Stewart,  v.  Denton,  (1  T.  R.  tered  generally ;  but  the  Court  permit- 
11.,)  on  a  similar  application,  where  ted  the  lessor  (pending  a  rule  Tim  to 
the  plaintiff  had  declared  for  a  messu-  arrest  the  judgment  for  the  uncertain- 
age  and  tenement,  the  Court  refused  ty)  to  enter  the  verdict  according  to  the 
to  grant  the  rule,  II idler,  .1.  saying,  he  Judges'  notes  for  the  messuage  only, 
remembered  a  case  where  a  messuage  and  that  without  releasing  the  dama- 
er  tenement  had  been  held  sufficiently  ges. 

certain.  But  this  case  was  afterwards         (tc)   Burbury  v.    Yeomaru,    1    Sid 

overruled,  in   Doe,  A.  Bradshaw,   v.  295. 

Ploicman,(1  East,  441.,)  "for  that  it        (x)  Danvcrt  v.  Wellington,  Hard, 

passed  by  surprise,  and  was  not  law,  173.  Rodiester  v.  Riekhotue,  Pop.  203. 
being  contrary  to  adjudged  cases."  (y)  Fitzgerald  v.  Marshall,  1  Mod. 

The  point  i»  therefore  now  at  rest,  al-  90. 

though,  from  the  more  recent  case  of        (a)  Hill  v.   Gilet,  Cm.  Elie.   818. 

Goodtitle,A.  Wrighl,  v.  Oteay,  (8  East,  Lady  Dacru'   case,   1  Lev.  68.  Ha- 

367.)  the  defendant  is  precluded  from  mond  v.  Ireland,  Sty.  215. 
deriving  any  advantage  from  such  er-        (a)  Royslon  v.  Ecclttton,  Cro.  J«c 

ror  in  description.    In  that  case,  the  654.  S.  C.  Palm.  337. 


24  OF    WHAT    THINGS 

enough. (/;)  So  also  of  a  room,  and  of  a  chamber  in  the 
second  story.(c)  In  like  manner  it  has  heen  held  that  an 
ejectment  for  "  part  of  a  house  in  A»"  is  sufficiently  cer- 
tain, (d)  So  also  of  "  a  certain  place  called  the  v  estry."(e) 

It  has  formerly  been  holden  that  ejectment  for  a  kitchen 
could  not  be  supported  ;  because,  although  the  word  be  well 
enough  understood  in  common  parlance,  yet,  as  any  chamber 
in  a  house  may  be  applied  to  that  use,  the  sheriff  has  not 
certainty  enough  to  direct  him  in  the  execution,  and  the 
kitchen  may  be  changed  between  judgment  and  execution  5 
but  this  reasoning  does  not  correspond  with  the  maxims  of 
the  present  day.(/) 

An  ejectment  will  not  lie  for  a  close,(g)  nor  for  the  third, 
or  other  part  of  a  close,  nor  for  a  piece  of  land,  unless  the 
particular  contents,  or  number  of  acres,  be  specified.  (/<) 
From  the  old  authorities,  it  seems  also  formerly  to  have 
been  holden,  (though  the  point  is  certainly  somewhat  ob- 
scure,) that  the  addition  of  the  name  of  the  close,  without 
mention  of  the  number  of  acres,  would  be  bad ;  though 
such  a  description,  it  is  conceived,  would  now  be  deemed 
sufficiently  certain,  (i) 

In  ejectment  for  land,  the  particular  species  should  be 

(b)  Bindover  v.   Sitidercombe,  Ld.        (A)  Palmer's  case,  Owen,  18.  Mar- 
Kiivui.  1470.  tyii  \.  JVi'c.W*,  Cro.  Car.  673.   Jordan 

(c)  .Inony.  3  Leon.  210.  v.  Cleabournc,  Cro.  Eliis.339.  Pemble 

(d)  Sullican  v.  Scagrare,  Stran.  695.     v.  Sterne,  1  Lev.  213. 

liatrson  v.  Maynard,  Cro.  Eliz.  280.  (i)  Lady  Dacres'   case,  1  Lev.  68, 

(e)  Hutclnnton  v.  Puller,  3  Lev.  95.  Sard's  casi.,  1 1  Co.  55.  hniglU  v.  Syms, 
(/)  Ford  v.  Lerke,  Noy,  109.  1  Salk.  254.  Rvyttun  v.  Eccleston,  Cro. 
(#)  Snvel't  case,  1 1  Co.  55.  Hani-  Jac.  654.  Jurdan  v.  Cltabourne,  Cro, 

inond  v  Sard,  1  Rol.  Rep.  65.  Knight    EIi7.,33D.  H'ykei  v.  Sfarrmr,  Cro.  Jac. 
v.   Syms,  Salk.  254.  Joatu  v.   Ilvtl,    435. 
Cro.  Eliz,  235. 


AN  EJECTMENT  WILL  LIE.  25 

mentioned  in  the  description,  whether  pasture,  meadow,  &c. 
because  land,  in  its  legal  acceptation,  signifies  only  arable 
land.(;) 

An  ejectment  for  ten  acres  of  underwood  has  been  held 
good  ;(k)  because  underwood  is  so  well  understood  in  law, 
that  the  sheriff  has  certainty  enough  to  direct  him  in  the 
execution. 

"  Fifty  acres  of  gorse  and  furze"(/)  has  been  held  suffi- 
ciently certain  in  an  ejectment,  without  specifying  the  par- 
ticular qirantity  of  each :  so  also  "  fifty  acres  of  furze  and 
heath,"  and  "  fifty  acres  of  moor  and  marsh."(m) 

An  ejectment  for  "ten  acres  of  pease"  has  been  held  to 
be  certain  enough,  as  signifying  the  same  with  ten  acres  of 
land  covered  with  pease,  (n) 

It  seems  that  an  ejectment  may  be  brought  for  a  manor, 
or  a  moiety  of  a  manor,  generally,  without  any  description 
of  the  number  of  acres,  or  species  of  land  contained  there- 
in, and  that  under  such  general  description  the  jury  may 
find  a  verdict  for  the  plaintiff,  for  a  messuage,  or  for  so  many 
acres  "parcel  of  the  said  manor,"  and  for  the  defendant, 
for  the  residue  of  the  manor ;  but  it  is  said  in  the  old  cases, 
not  to  be  safe  to  bring  an  ejectment  for  a  manor,  without  de- 
scribing the  quantity  and  species  of  the  land.(o) 


(j)  .Vastly  v.  Rice,  Cowp.  346,  349.  (m)  Connor  v.  West,  Burr.  2672. 

Sarf/'jcase,  11  Co.  55.  (n)  Odingsall  v.  Jackson,  1  Brown, 

(A)  Warren  v.  Wakeley,  2  Roll.  Rep.  149. 

482.  (o)   Warden'*  case,  Het.  146.    Cole 

(0  Fitzgerald  \.  Martha!!,  1  Mod.  v.  Jylott,  Litt.  Rep.  299,  301.    Hems 

IK).  v.Strmtd,  Latch,  61. 

4 


26  OF  WHAT  THINGS 

When  an  ejectment  is  brought  for  tithes, (p)  the  particu- 
lar species  of  tithe  demanded,  should  be  specified  in  the  de- 
claration, as  of  hay,  wheat,  &c.  or  the  description  will  be 
bad  for  uncertainty  5(7)  but  it  is  not  also  necessary  to  men- 
tion the  precise  quantity  of  each  species,  because  tithe  is 
in  its  nature  uncertain,  the  quantity  entirely  depending  on 
the  fruitfulness  of  the  season ;  and  it  is,  therefore,  enough 
to  say,  "of  certain  tithes  of  hay,  wool,  &c."(r) 

In  an  old  case,  where  the  plaintiff  declared  on  a  lease  for 
tithes  in  R.,  belonging  to  the  rector  of  D.,  and  that  the  de- 
fendant entered  upon  him,  and  took  such  tithes  severed 
from  the  nine  parts  in  jR.,  without  saying  that  the  tithes  so 
taken  belonged  to  the  rectory  of  Z).,  the  description  was 
held  ill,  because  it  did  not  confine  the  ouster  to  the  tithes 
laid  in  the  declaration;  for  the  defendant  might  have  ousted 
the  plaintiff  of  tithes  in  R.,  which  did  not  belong  to  the  rec- 
tory of  D.(s) 

In  an  ejectment  brought  in  the  county  of  Durham,  the 
plaintiff  declared  "for  coal  mines  in  Gateside,"  generally, 
not  specifying  the  particular  number ;  and  it  appearing, 
upon  a  writ  of  error,  that  such  was  the  customary  mode  of 
declaring  in  the  county,  the  judgment  for  the  plaintiff  was 
affirmed,  (t) 


(p)  It  was  once  contended,  that  in  Warrall  v.  Harper,  1  Roll.  Rep.  65, 68. 

an  ejectment  for  tithes,  the  ejection  Dyer  84,  5. 

should  be  laid,  "  of  the  rectory,  or  (r)  .Qnony.  Dyer,  116,  (fc). 

chapel,  and  of  the  tithes  thereunto  ap-  (»)  Baldwin  v.  Wine,  \\ .  Jones, 321, 

pertaining,"    for,  that    the    plaintiff  tamen  queere,   el  vide    Goodright,  d. 

could  not  have  a  writ  of  habere  facias  Smallwood,  v.  Slrolher,  Blk.  706. 

possessiontm  of  the   tilhes   only:  but  (f)  W liiltingham  v.  Andrews,  4  Mod. 

the  objection  was  overruled.     Bald-  143.  S.  C.  1    Show.  364.  S.  C.  Salk. 

wfnv.  Wine,  Cro.  Car.  301.  255.    S.  C.  Carth.  277.  S.  C.  Cemb. 

(?)    Harpur's  case,   11  Co.  25.  (6).  201. 


AN  EJECTMENT  WILL  LIE.  27 

If  a  person  eject  another  from  land,  and  build  thereon, 
it  is  sufficient  if  the  owner  bring  his  ejectment  for  the  land, 
without  mentioning  the  building,  except  where  the  building 
is  a  messuage,  and  then  perhaps  it  ought  to  be  particularly 
named.(w) 

• 

(tt)  Goodtitle,  d.  Chester,  v.  jilker,  Burr.  133, 144. 


28 


CHAPTER  III. 

Of  THE  TITLE  NECESSARY  TO  SUPPORT  THE  ACTION  OF 
EJECTMENT. 


THE  modern  action  of  ejectment  is  the  most  simple  and 
ready  mode  of  trying  every  species  of  possessory  title  ; 
and  nearly  all  the  minute  and  perplexing  distinctions  with 
which  our  laws  of  real  property  abound,  are  to  be  found  in 
cases  where  this  form  of  action  has  been  adopted.  A  full 
inquiry  into  all  the  points  discussed  in  these  cases,  would 
render  this  treatise  far  too  voluminous  for  practical  pur- 
poses, and,  indeed,  would  be  foreign  to  its  design,  which  is 
to  treat  of  the  remedy  by  ejectment,  and  not  of  the  laws 
of  real  property  ;  whilst,  on  the  other  hand,  an  enumera- 
tion only  of  the  different  titles  sufficient  to  support  an  eject- 
ment, would  be  of  little  service  either  to  the  student  or 
practitioner.  It  is  intended  therefore  to  keep  a  middle 
course,  first  discussing  the  general  principles  upon  which 
the  remedy  is  founded,  and  afterwards  stating  in  succession 
the  various  persons,  who,  from  the  nature  of  their  several 
estates,  are  entitled  to  maintain  the  action  ;  pointing  out 
the  leading  cases  under  each  separate  title,  but  leaving  the 
more  minute  distinctions  to  those  publications,  which  treat 
expressly  of  the  laws  of  real  property. 

As  the  party  in  the  possession  of  property  is  presumed 
to  be  the  owner  of  the  same,  until  the  contrary  is  proved. 


OF  THE  TITLE,  &C.  29 

it  is  necessary  for  a  claimant  in  ejectment  to  show  in  him- 
self a  good  and  sufficient  title  to  the  lands,  to  enable  him 
to  recover  them  from  the  defendant.  He  will  not  be 
assisted  by  the  weakness  of  the  defendant's  claim.  The 
possession  of  the  latter,  gives  him  a  right  against  every 
man  who  cannot  establish  a  good  title ;  and  if  he  can  an- 
swer a  prima  facie  case  on  the  part  of  the  lessor  of  the 
plaintiff,  by  shewing  the  real  title  to  the  land  to  be  in 
another,  it  will  be  sufficient  for  his  defence,  without  also 
proving  that  he  holds  the  lands  with  the  consent,  or  under 
the  authority  of  the  real  owner.(?)[3]  And  the  case  will 

(r)  Roe,  d.  Haldane,  v.  Harvey,  4  Burr.  2484. 


[3]  This  rule,  thus  broadly  laid  down,  is  subject  to  numerous  exceptions. 
A  mortgagor  is  never  suffered  to  set  up  the  title  of  a  third  person  against  his 
mortgagee,  Doe.  v.  Pegge,  1  T.  R.  768,  note  So  in  ejectment  by  the  second 
mortgagee  against  the  mortgagor,  the  defendant  was  not  suffered  to  set  up 
the  first  mortgage  in  bar  of  the  second.  Ib.  760.  S.  C.  3  Wheaton's  Rep.  225, 
226.  n.  Bull.  N.  P.  110. 

And  the  mortgagor  is  deemed  the  legal  owner  of  the  land,  as  to  all  persons 
except  the  mortgagee,  and  may  maintain  ejectment.  Collins  v.  Torrey,  7 
Johns.  Rep.  278.  IVillington  v.  Gale,  7  Mass.  Rep.  138.  Porter  v.  Millet,  9 
Ma*s.  Rep.  101.  Hitchrock  v.  Harrington,  6  Johns.  290.  Sedgwick  v.  Hallen- 
back,  1  Johns.  376.  Jackson  v.  Pratt,  10  Johns.  381. 

A  persou  entering  into  possession  under  another,  and  acknowledging  his 
title,  cannot  set  up  an  outstanding  title  in  a  third  person.  Jackson  v.  Stewart, 

6  Johns.  34.     Jackson  v.  De  Walls,  7  Johns.  157.     Menliall  v.  Wriglit,  3  Mass. 
Rep.  138. 

Whether  there  is  a  tenancy,  or  not,  is  matter  of  fact,  and  the  defendant  may 
produce  parol  evidence  to  disprove  the  existence  of  it.  Jackson  v.  Vosburgh, 

7  Johns.  186. 

A  lessee  will  not  be  permitted  to  show  that  the  laud  leased  to  him  is  out  of 
the  boundaries  of  the  lessor's  premises.  Jackson  v.  Wldtford,  2  Caines'  Rep.  215. 
Brant  v.  Lirermore,  10  Johns.  358.  2  Camp.  12. 

Where  defendant  entered  under  A. ,  and  afterwards  obtained  a  release  from 
H-,  he  cannot  set  up  fi.'s  title  against  a  person  claiming  under  A.  Jackson  v. 
Hinman,  10  Johns.  293. 

Defendant  entering  into  possession  for  a  year,  and  holding  over,  cannot 


30  OF  THE  TITLE  NECESSARY  IN  THE 

not    be    varied,   although   (he   lessor  can  prove  that  he 
has  previously  been  himself  in   possession  of  the  premi- 


ohjcct  to  his  lessor's  title,  or  show  title  in  a  third  person.     Jackson  v.  M'Leod, 
12  Johns.  182. 

Defendant  entering  under  one  tenant  in  common,  cannot,  after  partition 
made,  object  to  the  title  of  the  co-tenant.  Jackson  v.  Creal  &,  Kellogg,  13 
Johns.  116.  and  Smith  v.  Burlis,  9  Johns.  174. 

A  person  coming  into  possession  under  ./.,  cannot  set  up  a  title  which  .1. 
would  not  be  permitted  to  set  up.  Jackson  v.  Harder,  4  Johns.  202. 

A  tenant  cannot  resist  his  Landlord's  recovery  in  ejectment,  by  virtue  of  an 
adverse  title  acquired  during  his  lease.  Lessee  of  Galloway  v.  Ogle,  3  Bin- 
ney,  468. 

A  defendant  entering  without  title,  and  afterwards  agreeing  to  purchase  of 
the  lessor  of  the  plaintiff,  was  held  to  have  recognized  him  as  landlord,  and 
vras  not  admitted  to  dispute  his  title.  Jackson  v.  Reynolds,  1  Caines'  Rep.  444. 
Jackson  v.  Whitford,  2  Caines'  Rep.  215.  Jackson  v.  Vosburgh,  7  Johns.  188. 

But  where  tenant  is  in  possession  under  an  adverse  title,  and  applies  to  the 
lessor  of  the  plaintiff  to  purchase,  and  requests  to  be  considered  as  his  tenant, 
he  was  permitted  to  show  that  the  application  was  founded  in  mistake,  or  that 
the  fee  existed  in  himself  or  out  of  the  lessor.  Jackson  v.  Cuerden,  2  Johns. 
Cas.  353. 

A  person  in  possession  covenants  to  pay  for  the  land — in  ejectment  by  the 
covenantee,  defendant  is  estopped  from  setting  up  an  outstanding  title,  unless 
he  can  show  deceit  in  the  agreement.  Jackson  v.  *1yres,  14  Johns.  224. 

In  ejectment  by  the  grantee,  in  a  mere  voluntary  conveyance,  the  heir  of 
the  grantor  cannot  set  up  want  of  consideration  in  bar  of  the  action,  for  the 
deed,  fraudulent  as  to  creditors,  is  good  against  the  grantor.  Jackson  v. 
Garnsey,  6  Johns.  189. 

A  purchaser  under  an  execution,  is  in  the  place  of  the  defendant,  and  quasi 
tenant,  and,  in  ejectment  by  the  landlord,  cannot  set  up  title  in  a  third  per- 
son. Jackson  v.  Graham,  3  Caines'  Rep.  188. 

Nor  can  the  defendant,  or  a  person  in  under  him  collusively,  set  up  a  title 
in  a  third  person  against  the  purchaser.  Jackson  v.  Bush,  10  Johns.  223. 

The  rule  that  a  plaintiff  must  recover  on  the  strength  of  his  own  title,  and 
not  on  the  weakness  of  the  defendant's,  does  not  apply  against  a  plaintiff 
who  was  fraudulently  induced  by  the  defendant  to  purchase  a  weak  title. 
Lane  \.  Reynard,  2  Sergeant  &,  Rawle,  65. 

Defendant  claiming  title  under  same  survey  as  plaintiff,  cannot  object  to 
the  correctness  of  the  survey.  Powers  v.  M'Ferran,  2  Sergeant  &t  Rawle,  44. 

The  purchaser  of  an  equity  redemption,  sold  on  execution,  can  aver  no 
title  against  any  other  person  than  the  execution  debtor,  or  his  immediate  as- 
Morns.  Forster  v.  Melton,  10  Mass.  Rep.  421. 


ACTION  OF  EJECTMENT.  -il 

ses.[4]  Thus,  where  a  lease,  made  hy  a  rector,  was  rendered 
void  by  his  non-residence,  his  lessee  was  not  allowed  to  reco- 
ver against  a  stranger,  who,  without  any  title  whatsoever, 
ousted  him,  and  got  possession. (w)  So,  also,  where  a  man 
leased  land  for  years,  and  his  lessee,  after  having  been  in  pos- 
session a  considerable  time,  made  an  under  lease,  the  under 
lessee,  upon  an  ejectment  brought  by  his  immediate  lessor, 


(MJ)  Doe,  d.  Crisp,  v.  Barber,  2  T.  plaintiff  has  a  priority  of  possession, 
R.  749.     It  is  said  in  the  case  of  Jll-  aud  no  title  is  found  for  the  defendant, 
*  len  v.  Rivinglon,  2   Saund.   111.   that  the    plaintiff  shall  have  judgment;" 
"  in  ejectment,  if  it  appear  by  the  re-  but  this  doctrine  seems  directly  over- 
cord    of  a   special   verdict,    that  the  ruled,  by  the  case  here  cited. 


[4J  A  mere  trespasser  or  intruder,  cannot  protect  himself  by  setting  up  an 
outstanding  title  in  a  stranger.  Jackson  v.  Harder,  4  Johns.  202. 

Where  the  plaintiff  relied  upon  a  mere  possessory  title,  he  was  not  bound 
in  show  a  possession  of  twenty  years,  where  the  defendant  had  entered,  without 
claim  or  color  of  title.  The  entry  was  tortious,  and  a  party  shall  not  derive 
a  right  from  his  own  unlawful  act.  Jackson  v.  Hasen,  2  Johns.  24. 

If  the  lessor  shows  himself  in  the  peaceable  possession  of  land,  and  that 
he  was  forcibly  dispossessed,  the  defendant  will  not  be  permitted  to  set  up 
title  to  defeat  it.  He  must  restore  the  party  to  his  possession,  wrongfully 
taken  from  him,  in  the  first  place.  People  v.  Leonard,  11  Johns.  5(»9. 

But  in  the  case  of  Jackson  v.  Scclye,  (16  Johns.  2.00)  Spencer,  Ch.  J.  sni .,, 
••  individually,  I  am  of  opinion,  that  a  forcible  entry  on  the  premises  will  not 
"  estop  the  defendant  from  asserting  an  independent  right  to  retain  the  pos- 
•  session.  The  action  of  ejectment  includes  a  trespass,  and  is  founded  oil 
"  the  notion  that  the  defendant  1ms  forcibly  entered  upon  the  possession  of 
"  the  nominal  plaintiff.  It  may  safely  be  asserted,  that  am  defence,  which, 
"  as  it  respects  the  right  to  the  premises,  would  protect  the  defendant  from 
"  the  recovery  of  damages  in  an  action  of  trespass  quart  clausum  fi'tgif, 
"  will,  d  fortiori,  protect  a  defendant  in  ejectment."  In  the  case  of  Hyatt  \. 
Wood,  (4  Johns  Rep.  150)  it  was  decided,  that  if  one  having  a  possessory 
title  to  land,  enters  forcibly,  and  turns  out  a  person  who  ha.s  a  naked  posses- 
sion only,  the  latter  could  not  maintain  trespass,  although  the  person  enter 
ing  forcibly  might  be  indicted  for  a  breach  of  the  peace. 

A  naked  possession  is  sufficient  title  on  which  to  recover  against  a  mere 
--I.T,  who  can  show  no  better  title.  Wood*  v.  Lane,  2  Serg.  &t  Rawle,  53. 


32  OF  THE  TITLE  NECESSARY   IN    THE 

was  allowed  to  shew  that  the  lease  from  the  original  lessor 
had  expired,  and  thereby  nonsuited  the  plaintiff,  (x)  [5] 

In  order  to  enable  a  claimant  to  support  an  action  of 
ejectment,  he  must  be  clothed  with  the  legal  title  to  the 
lands. (y)  No  equitable  title  will  avail.  And  this  princi- 
ple is  so  fixed  and  immutable,  that  a  trustee  may  maintain 
ejectment  against  his  own  cestui  que  trust  >(2)[6]  and  an 
unsatisfied  term  outstanding  in  trustees  will  bar  the  re- 
covery of  the  heir  at  law,  even  though  he  claim  only  sub- 
ject to  the  charge. (a)  In  the  time  of  Lord  Mansfield, 

(z)  England,  d.  Syburn,  v.  Slade,  Luxlon,  6  T.  R.  289. 

4  T.  R.  682.  (z)  Roe,  d.  Reade,  v.  Read,  8  T.  R. 

(?/)  Goodtitle,  d.  Jones,  v.  Jones,  7  118,  123. 

T.  R.  43,  47.     Doe,  d.   Da  Costa,  v.  (a)  Doe,  d.  Hodson,  v.  Staple,  2  T. 

Wharton,  8  T.  R.  2.     Doe,  d.  Blake,  v.  R.  684. 

[5]  But  if  defendant  proves  a  title  out  of  the  legsor  of  the  plaintiff,  it  must 
be  a  good  and  subsisting  title,  and  if  the  plaintiff  shows  a  good  title,  the  pre- 
sumption of  the  extinguishment  of  the  outstanding  title  will  be  liberally  in- 
dulged. Jackson  v.  Hudson,  3  Johns.  Rep.  375.  Jackson  v.  Todd,  6  Johns.  267. 

Where  more  than  20  years  have  run  against  an  outstanding  title,  it  cannot 
be  set  up  as  a  bar.  Jackson  v.  Harder,  4  Johns.  202. 

So,  where  a  defendant  produces  a  lease  for  1000  years  to  another,  he  must 
•how  possession  under  the  lease  within  twenty  years.  Bull.  N.  P.  1 10. 

[6]  This  principle  has  been  recognized  by  the  Supreme  Court  of  New-York, 
in  the  case  of  Jackson  v.  Deyo,  3  Johns.  Rep.  423.  The  only  way  in  which 
an  equitable  title  can  be  assisted  at  law,  is,  by  allowing  the  presumption  in 
certain  cases  to  prevail,  that  there  has  been  a  conveyance  of  the  legal  estate. 
Jackson  v.  Pierce,  2  Johns.  Rep,  221. 

But  when  the  case  precludes  any  such  presumption,  the  legal  title  is  pe- 
remptory, and  must  prevail,  and  especially  if  the  equitable  title  be  dubious. 
Jackson  v.  Sisson,  2  Johns.  Cases,  321.  Jackson  v.  Van  Slyck,  8  Johns.  487. 

In  Pennsylvania,  where  there  is  no  Court  of  Chancery,  the  courts  at  law 
stay  the  execution,  where  defendant  has  an  equitable  title  to  the  lands.  Lessee 
of  Malhtrs  v  Mewri^M,  2  Binney,  93. 

In  that  State  the  vendee  of  lands  may  recover  them  by  ejectment,  under 
articles  of  agreement  for  the  sale,  upon  tendering  the  purchase  money,  and 
their  courts  at  law  enforce  articles  of  agreement  for  the  sale  of  lands,  by 
ejectment,  in  all  cases  where  a  Court  of  Chaucery  would  decree  a  specific 
performance.  Haven  v.  JVinrw,  4  Binney,  77. 


ACTION  OF  EJECTMENT.  33 

indeed,  the  Court  of  King's  Bench  seemed  inclined  to  adopt 
,i  different  principle,  and  to  exercise  a  species  of  equitable 
jurisdiction  in  this  action.  Thus,  a  mortgagee  was  per- 
mitted to  maintain  ejectment  against  a  tenant,  claiming 
mxlrr  a  lease  granted  prior  to  the  mortgage,  provided  he 
gave  notice  to  the  tenant,  that  he  did  not  intend  to  disturb 
the  possession,  but  only  to  get  into  the  receipt  of  the  rents 
and  profits  of  the  estate  ;(&)  the  legal  estate  of  a  trustee  was 
not  allowed  to  be  set  up  against  the  cestid  que  trust  ;(c) 
and  a  reversioner  was  allowed  to  recover  his  reversionary 
interest,  subject  to  a  lease  and  immediate  right  of  posses- 
sion in  another.( d)  These  cases,  however,  have  long  been 
overruled,  and  the  clearness  and  certainty  of  the  principle 
since  adopted  amply  compensate  for  the  partial  incon- 
venience it  may  at  times  occasion. 

The  claimant  must  also  have  a  right  to  the  possession ; 
that  is  to  say,  he  must  have  a  right  of  entry  upon  the  lands 
at  the  time  of  the  demise  in  the  declaration.  And  what- 
ever takes  awaj  this  right  of  entry  or  possession,  and  turns 
the  same  into  a  right  of  action,  will  also  deprive  the  claim- 
ant of  his  remedy  by  ejectment,  although  the  legal  title 
still  remains  in  him.  But  if  he  be  entitled  to  the  possession 
at  the  time  the  demise  is  laid,  it  will  be  sufficient,  although 
such  right  of  possession  be  divested  before  trial ;  for  the 
action  of  ejectment  is  intended  to  give  the  party  compensa- 
tion for  the  trespass,  as  well  as  to  enable  him  to  recover 
possession  of  the  land ;  and  he  has  a  right  to  proceed  for 


(6)  Ktech,  A.  Warne,  v.  Hall,  Doug.  Doe,  d.  Gibbon,  v.  Poll,  Doug.  710 

21.    Mots  Y.   Gallimore,    Doug.  279.  721,  rt  vide  Oaten,  d.  Wig fall,  v.  Bry- 

B.  N.  P.  96.  don,  Burr.  1896.  1901. 

(c)  Lade  T.  Holford,  B.  N.  P.  110.        (d)  Per  Butler,  J.  in  Doe,  d.  Brit- 

9.  C.  Burr.  1416.      S.  C.  Blk.  428.  tow,  v.  Pegge,  1  T.  R.  759.  (in  notit.) 
Doe,  d.  Hodxon,  v.  Staple,  2  T.  R.  684. 

5 


•  J't  OF  THE  TITLE  NKCKS5ARY   IN  THE 

such  trespass,  although  his  right  to  the  possession  should 
cxjase.(c)[7] 

The  origin  of  the  principle,  that  the  lessor  must  have  a 
right  of  entry,  has  already  been  considered. (f)  and  \ve 
must  now  notice  the  several  ways  hy  which  this  right  of 
entry  or  possession  may  be  destroyed.  The  consideration 
of  the  effects  of  fines  levied  with  proclamations,  and  of  the 
right  of  entry,  as  between  landlord  and  tenant,  for  con- 
dition broken,  will  be  reserved  for  the  two  following  chap- 
ters :  those  acts  only  are  here  to  be  considered,  which  take 
away  the  right  of  entry  from  the  claimant,  but  leave  in  him, 
notwithstanding,  the  right  of  property  or  of  action. 

In  this  point  of  view,  a  right  of  entry  may  be  destroyed 
in  three  several  ways.  First,  by  Discontinuance ;  secondly, 
by  Descent ;  and,  thirdly,  by  the  Statute  of  Limitations. 

I.    BY  DISCONTINUANCE. 

A  discontinuance  of  an  estate  signifies  such  an  alienation 
made  or  suffered,  by  any  person  seised  of  an  estate-tail,  or 
in  autre  droit,  in  things  which  lie  in  livery,  as  takes  away 
the  entry  of  the  person  entitled  after  the  death  of  the 
alienor. 

"  This  injury  happens  when  he  who  hath  an  estate-tail, 
maketh  a  larger  estate  of  the  land  than  by  law  he  is  en- 

(e)  Dot,  d.  Grundy,  v.  Clarke,  14        (/)  J1de  ante,  10. 
East,  488. 


[7]  Ejectment  being:  merely  a  possessory  remedy,  will  not  lie  in  favor  of 
a  prr«>n  already  in  possession ;  and,  therefore,  a  landlord  having  obtained 
•ion,  cannot  hrinsr  ejectment,  in  order  to  bar  the  right  of  his  absconding 
lessee.     Jackson  v.  Uakts,  2  Games'  Hep.  '£&. 


ACTION   OK  KJECTMENT.  35 

titled  to  do  :  in  which  case  the  estate  is  good,  so  far  as  his 
po\ver  extends  who  made  it,  but  no  farther.  As  if  a  tenant 
in  tail  makes  a  feoffment  in  fee-simple,  or  for  the  life  of  the 
feoffee,  or  in  tail ;  all  which  are  bejond  his  power  to  make, 
for  that,  by  the  common  law,  extends  no  farther  than  to 
make  a  lease  for  his  own  life  :  here  the  entry  of  the  feoffee 
is  lawful  during  the  life  of  his  feoffor ;  but  if  he  retains 
the  possession  after  the  death  of  the  feoffor,  it  is  an  inju- 
ry, which  is  termed  a  discontinuance ;  the  ancient  legal 
estate,  which  ought  to  have  survived  to  the  heir  in  tail, 
being  gone,  or  at  least  suspended,  and  for  a  while  discon- 
tinued. For,  in  this  case,  on  the  death  of  the  alicnors, 
neither  the  heir  in  tail,  nor  they  in  remainder  or  reversion, 
expectant  on  the  determination  of  the  estate-tail,  can  enter 
on  and  possess  the  lands  so  alienated  ;  because,  the  original 
entry  of  the  feoffee  being  lawful,  and  an  apparent  right  of 
j)ii--.--Jsion  being  thereby  gained,  the  law  will  not  suffer  that 
right  to  be  overthrown  by  the  mere  act  or  entry  of  the 
claimant,  (g) 

By  the  common  law,  an  estate-fail  may  be  discontinued 
five  ways  :  first,  by  confirmation  with  warranty;  secondly, 
by  feoffment;  thirdly,  by  fine;  fourthly,  by  common  re- 
covery ;  fifthly,  by  release. [8] 

An  estate-tail  cannot,  however,  be  discontinued,  except 
where  he,  who  makes  the  discontinuance,  was  once  seised 
by  force  of  the  in-tail,  that  is,  seised  of  the  freehold  and 

(g)  3  Blk.  Com.  171,  6. 


[8]  By  a  statute  of  New-York.  (1  Rev.  Laws,  52.)  trnaiu  ic>  in-tail  arr  abo- 
lifthcd  ;  and  Arsons  who,  if  the  act  were  not  pa— <••!.  wniiM  be  Kitcil  in  fer- 
tail,  are,  by  that  statute,  declared  to  I*  seised  in  tec-simple. 


36  OF  THE  TITLE  NECESSARY  IN  THE 

inheritance  of  the  estate  in  tail,  and  not  of  a  remainder  or 
reversion  expectant  upon  a  freehold. (h)  Hence,  if  there 
be  tenant  for  life,  the  remainder  in-tail,  &c.  and  tenant  for 
life,  and  he  in  the  remainder  in-tail  levy  a  fine,  this  is  not 
any  discontinuance  or  devesting  of  any  estate  in  remainder, 
but  each  of  them  passes  that  which  they  have  power  and 
authority  to  pass.(/) 

So,  also,  to  make  a  discontinuance,  by  levying  a  fine,  it  is 
necessary  that  the  estate  should  pass  to  the  alienee  by 
virtue  of  the  fine ;  if,  therefore,  the  tenant  in-tail  first 
alienate  his  estate,  by  modes  of  conveyance,  which  trans- 
fer only  the  possession,  and  not  the  right,  as  by  bargain  and 
sale,  lease  and  release,  &c.  and  the  grantee  is  seised  by 
virtue  of  such  conveyance,  a  fine,  levied  afterwards  by  the 
tenant  in  tail,  will  not  operate  as  a  discontinuance  of  the 
estate-tail ;  but  the  right  of  entry  will  remain  to  the  re- 
mainder-man, or  reversioncr,  for  the  first  five  years  after 
his  title  accrues. (j) 

But,  where  tenant  in  tail-male,  with  remainder  over  in 
fee,  in  consideration  of  a  marriage,  conveyed  his  estate-tail 
by  lease  and  release,  to  trustees,  and  their  heirs,  to  several 
uses,  and,  in  the  release,  covenanted  to  levy  a  fine  to  the 
same  uses,  and  did,  after  his  marriage,  levy  a  fine,  in  pur- 
suance of  his  covenant,  it  was  held  that  this  fine  operated 
as  a  discontinuance  of  the  estate  ;  because,  the  lease,  re- 
lease, and  fine,  were  all  but  one  assurance,  and  operated 
as  such  ;  for,  that  the  deeds  could  only  be  considered  as  a 
covenant  to  levy  a  fine,  and  were  incomplete  till  the  fine  was 
levied,  so  that  the  estate-tail  passed  by  the  fine.(A-) 

(A)  1  Insf.  347,  (6),  ti  ride  Liu.  (j)  Seymour's  case,  10  Co.  Q6,(  a). 

s.  640.  658.  (k)   Doe,  d  Odiarne,  r.  H'hitehead, 

(0  1  Fnst.  302,  (Ay  Burr.  704. 


ACTION  OF  EJECTMENT.  37 

This  case  was  distinguished  from  Seymour's,  because,  in 
that  case,  the  tine  was  not  levied  until  a  year  after  the  bar- 
gain and  sale  was  enrolled,  and  it  was  expressly  found  by 
the  v<T(li«-t,  that  the  bargainee  entered,  and  was  seised  by 
force  of  the  bargain  and  sale  only  ;  so  that  the  bargain  and 
sale  was  totally  unconnected  with  the  fine ;  nor  did  it  ap- 
pear that  any  fine  was  intended  to  be  levied  at  the  time 
when  the  bargain  and  sale  was  executed. 

In  the  case  of  Moor  v.  Bluke,(l]  which  was  an  ejectment 
tried  before  the  late  Mr.  Justice  Gould,  the  title  of  the  les- 
sor of  the  plaintiff  was  under  a  marriage  settlement,  by 
which  certain  premises  were  settled  on  the  husband  and 
wife  for  their  lives,  and  the  life  of  the  survivor,  remainder 
to  trustees,  to  preserve  contingent  remainders,  remainder 
(after  a  power  of  appointment  which  had  never  been  exe- 
cuted) to  all  and  every  the  children  of  the  marriage,  as  te- 
nants in  common  in-tail,  with  cross  remainders,  in  default  of 
issue  of  any  child,  to  the  survivors  in-tail,  with  remainder 
to  the  survivor  of  husband  and  wife,  in  fee.  Three  daugh- 
ters were  the  issue  of  the  marriage  ;  the  first  of  whom  died 
without  issue,  the  second  married  the  lessor  of  the  plaintiff, 
and  the  third  married  the  defendant  Blake,  and  died  with- 
out issue  ;  previous  to  her  death,  however,  she  and  her  hus- 
band had  levied  a  fine,  with  proclamations  of  her  moiety,  to 
recover  which  the  ejectment  was  brought.  The  counsel 
for  the  defendant  proved  the  fine  levied  with  proclamations, 
upon  which  the  plaintiff  was  nonsuited  :  the  learned  judge 
declaring,  that,  in  his  opinion,  the  levying  of  the  fine  had 
discontinued  the  estate-tail,  taken  away  the  claimant's  right 
of  entry,  and  driven  him  to  his  writ  of  formedon. 

(/)  Run.  Eject.  4i 


38  UK  TI1K  T1TLK  NKCKSSARY  IN  THE 

By  the  common  law,  the  alienation  of  a  husband,  who 
••ix-il  in  right  of  his  wife,  worked  a  discontinuance  of 
lin-  cslate  ;  but  now,  by  the  32  lieu.  VIII.  c.  28.  s.  6.  il  is 
provided,  that  no  act  of  the  husband  only  shall  work  a  dis- 
continuance of,  or  prejudice,  the  inheritance  or  freehold  of 
the  wife;  but  that,  after  his  death,  she,  or  her  heirs,  ma>  cu- 
ter on  the  lands  in  question  ;  and,  therefore,  the  wife,  or  her 
heirs,  may  now,  in  such  cases,  support  ejectment. 

A  feoffment  by  husband  and  wife  is  within  this  statute  ; 
because,  in  substance,  it  is  the  act  of  the  husband  only  ;  but 
a  tiiie  levied  by  the  husband  and  wife  is  uot.(m)[9] 

When,  also,  the  husband  and  wife  are  jointly  seised  to  them 
and  their  heirs,  or  the  heirs  of  their  two  bodies,  of  an  estate 
made  during  the  coverture,  and  the  husband  makes  a  fcoflf- 
ment  in  fee,  and  dies,  the  wife  may  enter  under  the  pro- 
visions of  this  statute,  although  it  was  the  inheritance  of 
them  both.(») 

By  the  statute  of  1 1  Hen.  VII.  c.  20.  it  is  also  provided, 

(m)  1  Inst  326,  (a).  CromwcWt  (n)  1  Tnst.  326,  (a).  Grcenley's  case, 
case,  2  Co.  77,  (6).  8  Co.  142,  (6). 


[9]  By  a  statute  of  New- York,  (1  Rev.  Laws,  369.)  a  feme-covert  may  con- 
vey lands  by  deed,  by  acknowledging  its  execution,  on  being:  examined  by  a 
judge,  fac.  privately,  and  apart  from  her  husband. 

A  grant  in  fee,  by  husband  and  wife,  of  the  wife's  lands,  not  acknowledged 
by  the  wife,  passes  only  the  husband's  interest,  and  the  estate,  after  his  death, 
reverts  to  his  wife  or  her  hf-irs.  Jackson  \.  Hears,  10  Johns.  435. 

And  her  subsequent  acknowledgment  docs  not  relate  back  to  the  time  of  Uit 
execution  of  the  deed.  Jackson  v  Stevens,  16  Johns.  110. 

Where  husband  and  wife  execute  a  deed  of  wife's  lands,  which  was  not  then 
acknowledged,  and  they  afterwards  execute  and  acknowledge  another  deed  of 
the  sa;ne  land,  to  a  second  person,  and  the  wife  afterwards  acknowledges  th« 
first  deed,  the  title  to  the  land  is  rested  in  the  second  grantee.  /6»W. 


ACTION  OF  EJECTMENT.  39 

that  "if  a  woman  has  any  estate-tail  jointly  with  her  hus- 
band, or  only  to  herself,  or  i<»  her  use,  in  any  lands  or  here- 
ditaments of  the  inheritance  or  purchase  of  her  hushand, 
or  given  to  the  husband  and  wife  in  tail,  by  any  of  the  an- 
coiors  of  the  husband,  or  by  any  other  person  su-ised  to  the 
use  of  the  husband,  or  his  ancestors,  and  shall  hereafter, 
Ix -inn  sole,  or  with  any  other  after-taken  husband,  discon- 
tinue, &c.  the  same,  every  such  discontinuance  shall  be 
void,  and  it  shall  be  lawful  for  every  person  to  whom  the 
interest,  title,  or  inheritance,  after  the  decease  of  the  said 
woman,  should  appertain,  to  enter,"  &c. 

This  statute  is,  for  the  most  part,  confined  to  convey- 
ances by  the  husband,  or  his  ancestor,  for  the  advancement 
of  the  wife.(o)  Hence,  if  land  be  settled  by  the  ancestor 
of  the  wife,  in  consideration  of  the  marriage,  it  is  not  with- 
in this  act ;  for  it  shall  be  intended  that  the  advancement 
of  the  wife  was  the  principal  caifse  of  the  gift.(/>)  But, 
where  the  conveyance  is  by  a  stranger,  in  consideration  of 
the  wife's  fortune  paid  by  her  father  to  the  vendor,  and 
other  money  paid  by  the  husband,  it  is  within  the  act. (7) 
So,  if  the  conveyance  be  by  the  husband,  or  his  ancestor,  in 
consideration  of  marriage,  although  it  be  joined  with  a  mo- 
ney consideration,  yet  it  is  within  the  statute. (r)  But  no 
estate  is  within  the  meaning  of  this  statute,  unless  it  be  for 
the  jointure  of  the  wife.  Hence,  although  an  estate  de- 
vised by  the  husband  to  the  wife  in  tail,  with  remainder 
ov«-r  to  a  stranger  in  fee,  be  within  the  words,  yet  it  is  not 
within  the  meaning  of  the  statute  ;  for  it  shall  not  be  in- 
tended to  be  for  a  jointure,  where  no  inheritance  is  reserv- 
ed to  the  husband  or  his  heirs,  and  the  meaning  of  the  sta- 

(o)  fouler  v.  Pitfall,  Cro.  Eliz.  2.  S.        (q)  Piygot  v.  Pitlntfr,   Moor, 
C.  1  Li-ori.  261.  (r)  Xirkman  v.   Thornton,  Cr«.  Jac. 

(y>)  Kynaston  v.  Lloyd,  Cro.  Jac.  624.    474. 


40  OF  THE  TITLE  NECESSARY    IN    THE 

tute  is,  that  the  wife  shall  not  prevent  the  lands  descending 
to  the  heirs  of  the  husband. ($) 

If  the  issue  in  special-tail,  with  reversion  in  fee  expec- 
tant, levy  a  fine,  and  afterwards  his  mother,  hcing  tenant 
in  tail  within  this  act,  make  a  lease  for  three  lives  (not  war- 
ranted by  the  statute  32  lien.  VIII.  c.  28.)  living  the  is-n.;  ; 
the  conusee  may  enter.(f)  But  if  the  reversion  in  fee  had 
been  in  another,  the  conusee  could  not  enter,  because  he 
would  have  nothing  but  by  estoppel ;  nor  the  heir,  because 
he  had  concluded  himself  by  the  fine  ;(w)  nor  the  issue.(-u) 

Formerly  an  alienation  made  by  a  sole  corporation,  as  a 
bishop,  or  a  dean,  without  the  consent  of  the  chapter,  was 
a  discontinuance  ;  but  since  the  disabling  statutes,(zo)  which 
declare  such  alienations  absolutely  void,  ab  initio,  no  dis- 
continuance can  by  such  means  be  effected.(x) 

2.  BY  DESCENT. (y) 

"  Descents,  which  take  away  entries,  are,  when  any  one, 
seised  by  any  means  whatsoever  of  the  inheritance  of  a 
corporeal  hereditament,  dies,  whereby  the  same  descends 


(*)  Foster  T.  Pitfall,  Cro.  Elir.  2.  S.  always  lay  his  demise  in  the  time  of 

C.  1  Leon.  261.  the  ancestor,  and  elect  not  to  be  Uis- 

(/)  Brown's  case,  3  Co.  60,  (6).  seised  ;  but   a  general  account  of  the 

(u)  Ward*  Walthev>tCro  Jac.  178.  doctrine  of  descent  cast  is  given  here, 

(c)  Lincoln  Coll.  case,  3  Co.  01,  (o).  in   order   to  render  this  part  of  the 

(w)  1  El«.  c.  19.      13  Elia.  c.  10.  subject  complete.     Vide  Taylor,  d.  j9t- 

(x)  F.  N.  B.  194.  kins,  v.  Horde,  (Burr.  60.)  where  the 

(y)  It   is  scarcely  possible  to  sug-  history  and  principles  of  the  doctrine 

gest  a  case,  in  which  the  doctrine  of  of  descent  cast  are  most  ably  investi- 

descent  cast  can  be  now  so  applied,  gated  by   Lord   Mansfield.     Vide  also 

as  to  prevent  a  claimant  from  main-  William,  d.  Hughes,  r.    Thomas,  (12 

taining  ejectment,  as,  from  the  prin-  East,  141.) 

ciples  of  disseisin  at  election,  be  may 


ACTION  OP  EJECTMENT.  41 

to  his  heir:  in  this  case,  however  feeble  the  right  of  the 
ancestor  might  be,  the  entry  of  any  other  person  who  claims 
title  to  the  freehold  is  taken  away  ;  and  he  cannot  recover 
possession  against  the  heir  by  this  summary  method,  but. 
is  driven  to  his  action  to  gain  a  legal  seisin  of  the  estate. 
And  this,  first,  because  the  heir  comes  to  the  estate  by  act 
of  law,  and  not  by  his  own  act ;  the  law,  therefore,  protects 
his  title,  and  will  not  suffer  his  possession  to  be  divested, 
till  the  claimant  hath  proved  a  better  right.  Secondly,  be- 
c;ui>e  the  heir  may  not  suddenly  know  the  true  state  of  his 
title ;  and,  therefore,  the  law,  which  is  ever  indulgent  to 
heirs,  takes  away  the  entry  of  such  claimant  as  neglected 
to  enter  on  the  ancestor,  who  was  well  able  to  defend  his 
title  ;  and  leaves  the  claimant  only  the  remedy  of  an  ac- 
tion against  the  heir.  Thirdly,  this  was  admirably  adapt- 
ed to  the  military  spirit  of  the  feudal  tenures,  and  tended 
to  make  the  feudatory  bold  in  war;  since  his  children  could 
not,  by  any  mere  entry  of  another,  be  dispossessed  of  the 
lands  whereof  he  died  seised.  And,  lastly,  it  is  agreeable 
to  the  dictates  of  reason,  and  general  principles  of  law."(z) 

This  doctrine  of  descent  cast  does  not  apply,  if  the 
claimant  be  under  any  legal  disabilities  during  the  life  of 
the  ancestor,  cither  of  infancy,  coverture,  imprisonment, 
insanity,  or  being  out  of  the  realm ;  because,  in  all  these 
cases  there  is  no  neglect  or  laches  in  the  claimant,  and, 
therefore,  no  descent  shall  bar  or  take  away  his  entry. (a) 
Nor  does  it  affect  copyhold,  or  customary  estates,  where 
the  freehold  is  in  the  lord  ;(6)  nor  cases  where  the  party 
has  not  any  remedy  but  by  entry,  as  a  de\  isee.(c) 

(:)  3  Blk.  Com.  17«.  (6)  Doe,  A.  Couk,  v.  Dnnrerj,  1  Kast. 

'n}  Lilt.  1.  3. .    ri  299. 

(r)  C...  Lilt.  -2  10,  (6). 
6 


42  OF  THE  TITLE  NECESSARY  IN  THE 

The  right  of  entry  may  be  tolled,  or  taken  away,  by  a 
descent  cast,  in  cases  of  abatement,  intrusion,  und  dis- 
seisin.[1] 


[1]  "  The  distinction  between  a  disseisin,  by  election,  as  contradislin- 
"  guished  from  a  disseisin,  in  fact,  was  taken  for  the  benefit  of  the  owner  of 
"  the  land,  and  to  extend  to  him  the  easy  and  desirable  remedy  of  assise  of 
"  novel  disseisin,  instead  of  the  more  tedious  remedy  by  a  writ  of  entry. 
"  \Yhcnever  ;<ti  act  is  done,  which,  of  itself,  works  an  actual  disseisin,  it  is 
<•'  still  taken  to  bo  an  actual  disseisin,  as  if  a  tenant,  for  years,  or  at  will, 
"  should  cnfeoff  in  fee.  On  the  other  hand,  those  acts,  which  are  susceptible 
"of  being  made  disseisins  by  flection,  are  no  disseisins  till  the  election  of 
"  the  party  makes  them  so  ;  as  if  a  tenant  at  will,  instead  of  making  a  feoff- 
<•'•  ment  in  fee,  should  only  make  a  lease  for  years.  Tl>c  distinctions  between 
"  disseisins  m  fact,  and  disseisins  by  election,  were  enforced  in  the  very 
"  distinguished  case  of  jUkyas  v.  Horde,  (1  Burr.  f>»>.)  and  they  have  been  his- 
"  torically  and  ingeniously  illustrated  by  Mr  Butler,  in  a  note  to  Coke  Little* 
<•<•  ton,  330,  b.  note  285."  Per  Kent,  J.  Jackson  v.  Rogers,  1  Johns  Cas.  36. 

An  actual  disseisin  is  necessary  in  order  to  cast  a  descent.  The  rightful 
owner  must  have  been  tortionsly  ousted,  either  by  violence,  or  by  some  act 
that  the  law  regards  as  equivalent  in  its  eflccts.  Disseisin  is  an  estate  gained 
by  wrong  and  injury,  and  therein  differs  from  dispossession,  which  may  be 
by  right  or  wrong  A  peaceable  entry  on  land,  apparently  vacant,  furnishes, 
per  se,  no  presumption  of  wrong.  An  entry,  not  appearing  to  be  hostile,  is  to 
be  considered  an  entry  under  the  title  of  the  true  owner.  Where  the  heir  re- 
lies on  a  descent  cast,  he  must  s-how  the  entry  of  his  ancestor  to  have  been 
tortious,  and  net  co-iigeable.  Smiih  v.  Curtis,  6  Johns.  198 — also,  vide  Jack- 
son v.  Sctinonmaker,  4  Johns  390.  and  authorities  cited. 

The  surrender  of  the  lands  of  an  infant  (sed  fju&re)  to  a  third  person,  by 
his  guardian,  is  a  disseisin,  and  the  infant  is  bound  to  bring  his  action  with- 
iu  ten  years  after  coining  of  age.  Jackson  v.  Jl'hitlock,  1  Johns.  Cas.  213. 

A  lease  for  years,  by  a  tenant  at  will,  is  no  disseisin,  unless  the  true  owner 
elect  to  make  it  so;  nor  does  it  destroy  his  capacity  to  devUe.  Blunden  r. 
Hun gh,  (.'ro.  Car.  30:2. 

A  disseisin  renders  the  disseisee  incapable  of  devising ;  for  a  devisor  must 
die  seised,  and  the  disseisee  lias  only  a  right  of  entry,  which  is  not  devisable^ 
Powell  on  Devi-es,  1S4.  Roberts  on  V.'ills,  21)7.  Bunker  v.  Cook,  11  Mod. 
128  Coodrighl  v.  Foresier,  8  East,  566.  Cruise's  Digest,  28,  29.  Title  Devise, 
<  hap.  3.  sec.  25.  and  28. 

But  if  drvisor  re-enter,  the  devise  becomes  valid,  he  then  being  considered 
'•<*  in  possession,  by  relation,  from  the  time  his  title  accrued.  Ibid. 

If  a  testator,  being  disseised,  devise  his  interest  to  the  dissrisor,  it  operates 


ACTION  OF  EJECTMENT.  3 

Hy  the  common  law,  if  an  abater,  or  intruder,  or  dis- 
s\-i>or,  died  in  peaceable  possession,  the  d» \-rrul  to  the 
heir  gave  to  him  a  right  of  possession,  and  look  away  from 
the  true  owner  his  right  of  entry,  although  such  death  hap- 
pened immediately  after  the  wrongful  acquisition  of  the 
lands  ;  but  by  the  statute  of  32  Hen.  VIII.  c.  33.  it  is  pro- 
vided, that  "  the  dying  seised  of  any  disseisor  of  and  in 
any  lands,  &c.  having  no  title  therein,  shall  not  be  deemed 
a  descent,  to  take  away  the  entry  of  the  person,  or  his  heir, 
who  had  the  lawful  title  of  entry  at  the  time  of  the  descent, 


as  a  release,  but  he  cannot  devise  the  lands  to  any  other  person.     Poor  v.  Ro- 
binson, 10  Mass.  Rep.  131. 

A  devi.se  is  an  intimation  of  an  election  not  to  be  disseised.  Jackson  v.  Ro- 
gers, I  Johns.  Cas.  33. 

\  <lonec  under  a  parol  gift  of  land  leases,  and  the  donor  merely  permits 
flu-  lessee  to  build  and  enjoy  the  term,  it  doi-s  not  operate  as  a  disseisin  unless 
In  <•!<  ( -lion.  Jackson  v.  Rogers,  1  Johns.  Cas.  33. 

A  person  enters  on  land  without  title,  and  the  tenants  attorn  to  him  ;  this  is 
not  a  disseisin  or  ouster  ;  for  the  attorumcnt  is  null  and  void  by  the  statute. 
Jackson  v.  Delancey,  13  Johns.  /}">3. 

The  descent  of  a  tenant  at  sufferance  will  not  toll  an  entry.  Jackson  v. 
Raymond,  I  Johns.  Cas.  88. 

The  holding  over  of  a  tenant  for  years  is  no  disseisin,  except  by  election, 
and  the  bringing  an  ejectment  is  not  an  election  to  be  disseised.  Ibid. 

In  Smartel  v.  It'illiams,  (Salk.  246.)  Holt  held,  that  where  mortgagee  as- 
signed, the  mortgagor,  by  the  covenant  to  enjoy  till  default  of  payment,  is  te- 
nant at  will,  the  assignment  made  him  tenant  at  sufferance,  but  his  continuance 
in  possession  could  never  make  a  disseisin,  nor  divest  the  term  ;  otherwise,  had 
the  mortgagor  died,  and  his  heir  entered  ;  for  the  heir  was  never  tenant  at 
will,  and  his  first  entry  was  tortious  ;  but  had  the  mortgagee  entered  on  the 
mortgagor,  and  the  mortgagor  had  re-entered,  the  re-entry  would  be  tortious. 

The  same  point  is  ruled  in  Gould  v.  A'acman,  f>  Mass.  Rep.  239. 

A  corporation  cannot  acquire  a  freehold  by  a  disseisin  committed  by  itself. 
Wetton  v.  Hunt,  2  Ma«s.  Hop.  r*\2. 

Where  a  disscisor  employed  an  agent  to  procure  a  deed  from  the  owner  of 
the  land,  and  the  agent  took  the  deed  in  his  own  name,  the  dissc  i>in  was  not 
thereby  purged,  and  nothing  passed  by  the  deed.  Smnll  r  Proctor,  16  Mass. 
Rep.  495. 

Where  a  conveyance  of  land  was  obtained  by  fraud,  it  did  not  operate  .-u<  h 
;i  di-M-isin  as  to  disable  the  grantor  to  de\  i*c  the  land  conveyed  by  such  deed. 
Smithicick  v.  Jordan,  15  Mas*.  Rep.  113. 


44  OF  THE  T1TI.K  NKCKSSAKY   IN  THE 

Unless  the  disseisor  has  had  peaceable  possession  for  five 
years  next  after  the  disseisin,  without  entry  or  continual 
claim  by  the  person  entitled."  This  statute,  however, 
being  a  penal  one,  is  construed  strictly,  and  does  not  ex- 
tend to  the  feoffee,  or  donee  of  the  disseisor,  mediate  or 
immediate,  and,  therefore,  the  descent  in  such  cases  re- 
mains as  at  the  common  law.(rf)  It  is  also  said,  that 
abaters  and  intruders  are  not  within  the  statute:  but  the 
successors  of  bodies  politic  and  corporate  in  cases  of  dis- 
seisin are  within  its  remedy,  although  the  statute  speak  of 
him,  that  at  the  time  of  such  descent  had  title  of  entry,  or 
his  heirs  ;  for  the  statute  clearly  extends  to  the  predecessor, 
being  disseised,  and,  consequently,  without  naming  his  suc- 
cessor, extendcth  to  him,  for  he  is  the  person  that,  at  the 
time  of  such  descent,  had  title  of  entry.(e) 

If  there  be  tenant  for  life,  the  reversion  in  fee,  and 
tenant  for  life  be  disseised,  and  die,  and  the  dieseisor  after- 
wards die  within  five  years,  the  reversioner  is  within  the 
benefit  of  the  statute,  and  his  entry  is  not  taken  away ;  for, 
after  the  death  of  the  tenant  for  life,  it  is  a  continuation  of 
the  same  disseisin  to  the  reversioner.  But  if  the  disseisor 
had  died  seised,  and  the  tenant  for  life  had  afterwards  died, 
there  the  descent  would  have  taken  away  the  entry  of  the 
reversioner,  because  there  was  no  continuation  of  the  same 
disseisin  upon  the  reversioner.  The  act  only  continues  a 
right  of  entry  in  the  disseisee,  where  a  right  of  entry  was 
once  in  him ,'  but  in  the  last  case  a  right  of  entry  never  was 
in  the  reversioner,  and  consequently  never  having  had  the 
right  of  possession,  he  is  not  a  disseisee  within  the  statute, 
to  punish  the  possession  of  the  heir  as  an  actual  ouster. 


(<*)  Co.  Lht.  266.  (c)  Co  Litt.238.     W'wMsh\.Tail- 

bois,  Plow.  38.  47. 


ACTION  OP  EJECTMENT.  45 

since  the  reversioner  was  never  actually  ousted  either  by 
the  original  disseisor,  or  his  heir.(e) 

It  is  immaterial  whether  the  descent  be  in  the  collateral 
line  or  lineal ;(/)  but  a  dying  seised  of  an  estate  for  life,  or 
of  a  reversion,  or  remainder,  will  not  take  away  an  enti 
because,  for  this  purpose,  it  is  essentially  necessary  that 
the  disseisor  should  die  seised  both  of  the  fee  or  fee-tail 
and  freehold.  If,  therefore,  the  disseisor  make  a  lease  for 
his  own  life,  or  the  life  of  another,  and  die  seised  of  the 
reversion,  this  descent  will  not  take  away  the  entry,  be- 
cause, although  he  had  the  fee,  he  had  not  the  freehold  at 
tlu-  time  of  his  death  ;  but  if  he  make  a  lease  for  years  and 
die  seised  of  the  reversion,  the  entry  will  be  taken  away, 
for  the  fee  and  freehold  are  both  in  him.  The  law  is  the 
same  in  the  case  of  a  remainder,  and  when  the  land  is 
extended  upon  a  statute,  judgment,  or  recognizance. (A) 

It  is  also  necessary,  that  the  descent  of  the  fee  and  free- 
hold be  immediate  to  bar  the  entry.  Hence,  if  feme 
di«>risorc->  take  husband,  and  have  issue,  and  after- 
wards the  husband  die,  such  descent  will  not  take  away  the 
entry  of  the  disseisee ;  because  the  heir  comes  not  to  the  fee 
and  freehold  at  once,  the  latter  having  been  suspended  until 
the  death  of  the  father,  who  was  tenant  by  the  courtesy. (i) 

To  constitute  a  descent,  therefore,  which  shall  take 
away  an  entry,  it  appears,  that  there  must  be  a  dying 
seised  in  demesne  of  a  corporeal  inheritance,  either  in  fee 
or  fee-tail,  that  the  rightful  owner  be  under  no  legal  dis- 
ability in  the  time  of  the  ancestor,  and  also  in  those  cases 

(e)  Co.  LiU.  238.    Wimbisk  r.  Tail-        (n)  Litt.  s.  387,  388. 
/wu,  Plow.  38.  47.  (/i)  Co  Lilt.  239,  (l>) 

(/)  Co.  Liu.  339,  (6).  (i)  Liu.  s  :v.i  J 


16  OF  THE  TITLE  NECESSAUY   IN  THL 

to  which  the  statute  of  32  Hen.  VIII.  c.  33.  extend?,  thai 
the  disseisor  have  five  years  quiet  possession  of  the  lands. 

3.  BY  THE  STATUTE  OP  LIMITATIONS. 

By  the  statute  of  21  Jac.  I.  c.  16.  s.  1.  it  is  enacted, 
that  "  no  person  shall  make  any  entry  upon  any  lands,  &c. 
but  within  twenty  years  next  after  his  right  or  title  shall 
first  descend,  or  accrue,  and,  in  default  thereof,  such  person 
so  not  entering,  and  his  heir,  shall  be  utterly  disabled  from 
such  entry."  Section  the  second  enacts,  "  that  if  any  per- 
son having  a  right  or  title  of  entry,  shall  be,  at  the  time  of 
the  said  right  or  title  first  descended,  accrued,  come,  or 
fallen,  within  the  age  of  twenty-one  years,  feme  covert,  non 
compos  mentis,  imprisoned,  or  beyond  seas,  then  such  per- 
son, and  his  heir,  may,  notwithstanding  the  said  twenty 
years  be  expired,  bring  his  action,  or  make  his  entry,  as  he 
might  have  done  before  this  act,  so  as  such  person,  or  his 
heir,  shall,  within  ten  years  next  after  his  and  their  full  age, 
discoverture,  coming  of  sound  mind,  enlargement  out  of  pri- 
son, or  coming  into  this  realm,  or  death,  take  benefit  of,  and 
sue  forth  the  same,  and  at  no  period  after  the  said  ten  years." 

From  the  ancient  doctrine  ofnullum  tcmpus  occurrit  regi. 
the  King  is  not  bound  by  this  statute,^'  )[2]  nor  are  ecclesi- 

(j)  By  stat.  9.  Gco  III.  c.  16.  the  or  claim,  and  consequently  an  adverse 

King  is  disabled  from  claiming-  title,  possession   of  lauds  for   sixty  years 

(except  to  liberties  and  franchises,)  will  now  be  a  good  title,  even  aguin-f 

unless  the  same  shall  acrnie  within  the  the  Crown, 
space  of  sixty  years  next  before  suit 


[2]  Bv  statute  of  New-York,  (1  Rev.  Laws,  194.)  no  suit  can  be  brought 
by  the  people  of  that  state  tor  lamb,  but  within  forty  years  after  their  title 
accrued,  unless  the  people,  or  those  chiming  under  them,  shall  have  received 
the  rents  and  profits  thereof,  within  the  Paul  spare  of  forty  yearn. 


ACTION  OF  EJECTMENT.  47 

astical  persons  within  it,  because  it  would  be  an  indirect 
means  of  evading  the  statutes  made  to  prohibit  their  aliena- 
tions ;  but,  with  these  exceptions,  the  statute  applies  to  all 
persons,  capable  of  a  right  to  enter ;  and,  therefore,  if  it 
appear  that  there  has  been  a  possession  by  the  defendant,  or 
those  under  whom  he  holds,  for  the  last  twenty  years,  ad- 
verse to  the  title  of  the  claimant,  and  that  the  claimant  has 
not  been  prevented  from  prosecuting  his  claim  earlier,  by 
reason  of  some  of  the  disabilities  allowed  by  the  statute,  he 
will  be  barred  of  his  remedy  by  ejectment.[3] 

It  is  not  easy  to  define  what  will  constitute  an  adverse 
holding  of  this  naturc3[4]  but  it  may  be  safely  laid  down 


[3]  If  a  person  out  of  possession  of  land,  held  adversely,  convey  the  same 
to  another,  the  deed  is  void  at  the  common  law,  and  by  the  act  against  chanv 
jicrtv  and  maintenance,  and  the  title  still  remains  in  the  grantor,  and  he  may 
maintain  ejectment.  Williams  v.  Jackson,  5  Johns.  489.  and  where  demises 
wore  laid,  both  from  the  grantee  and  grantor,  plaintiff  was  allowed  to  recover 
on  the  demise  of  the  grantor.  Ibid. 

The  same  principle  has  been  recognized  by  the  courts  in  Massachusetts. 
6  Mass.  Hep.  2.'J3.  3  ib.  573.  •  6  ib.  239.  6  ib.  418.  11  ib.  222.  7  ib.  76. 
10  ib.  60.  11  ib.  549.  9  ib.  514.  11  ib.  298. 

But  the  possession  of  a  third  person  is  not  of  itself  conclusive  against  a  con- 
veyance by  the  grantor,  but  it  must  be  shown  to  be  adverse.  Commonwealth- 
v.  Dudley,  10  Mass.  Rep.  403. 

Where  a  conveyance  of  land  was  obtained  by  fraud,  it  did  not  operate  such 
a  disseisin  as  to  disable  the  grantor  to  devise  the  land  so  conveyed.  Smith- 
icirk  v.  Jordan,  15  Mass.  Rep.  113. 

It  is  an  established  rule,  that  a  party  in  possession,  claiming  title,  may  pur- 
chase in  an  outstanding  title  to  protect  his  possession.  Jackson  v.  Smith,  13 
Johns.  2L»D. 

[4]  To  make  out  an  adverse  possession,  strict  proof  must  be  made,  net  only 
that  the  lirst  possession  wai  taken  under  a  claim  hostile  to  the  real  owner,  but 
that  such  hostility  has  existed  on  the  part  of  the  succeeding  tenants.  It  is  also 
requisite  that  such  possession  should  be  niaiUed  by  definite  boundaries. 
Brandt  v.  Odgcn,  1  Johns.  158.  Jackson  v.  Waters,  12  Johns.  368. 

Adverse  possession  is  not  to  be  made  out  by  inference,  but  by  clear  and  po- 
sitive proof,  and  every  presumption  is  in  favour  of  possession  in  subordination. 


IS  OF  THE  TITLE  NECESSARY   IN  THE 

that  an  adverse  possession  will  be  negatived,  when  the  par- 
ties claim  under  the  same  title,  when  the  possession  of  one 


to  the  title  of  the  true  owner.   Ibid.     And  Jackson  v.   Sharp,  9  Johns.  167. 
/}  iilJiftm  v.  Conklin,  8  Johns.  227. 

To  constitute  un  adverse  possession,  it  is  not  necessary  that  there  should  be 
a  rightful  title  ;  it  must,  however,  be  a  possession  under  claim  or  colour  of 
title,  and  exclusive  of  any  other  right.  Smith  v.  Burtis,  9  Johns.  180.  Jack- 
son v.  Ella,  13  Johns.  1 18. 

But  where  defendant  hold.-  by  adverse  possession  under  a  deed,  and  shows 
that  he  took  possession  under  it,  he  is  not  bound  to  produce  the  deed  at  the 
trial,  though  called  for  by  the  plaintiff.  Jackson  v.  Wheat,  J8  Johns.  44. 

A  claim,  or  colour  of  title,  sufficient  to  destroy  all  presumption  that  the  de- 
fendant was  in  possession  under  the  plaintiff,  or  held  in  obedience  to  his  right, 
is  adverse.  But  occupation  by  a  mere  intruder,  will  not  constitute  an  adverse 
possession,  nor  prevent  an  alienation  by  the  real  owner.  Jackson  v.  Todd,  2 
Caiues'  Rep.  185. 

A  grant  from  the  French  government  is  considered  as  a  nullity,  and  a  pos- 
session taken  under  such  a  grant  was  held  not  to  be  adverse.  Jackson  v. 
Waters,  12  Johns.  367. 

Where  a  person  enters  without  title,  and  tenants  attorn,  it  is  not  a  disseisin, 
and  the  attornment  is  »o''d,  and  such  entry  and  attorninent  will  not  be  consi- 
dered as  the  commencement  of  an  adverse  possession.  Jackson  v.  Delancey, 
13  Johns.  553. 

Whenever  the  defence  of  adverse  possession  is  set  up,  the  idea  of  right  is 
excluded,  the  fact  of  possession,  and  the  quo  animo  it  was  commenced  or  con- 
tinued, are  the  only  tests.  Smith  v.  Burtis,  9  Johns.  180. 

Adverse  possession  is  a  question  exclusively  for  the  jury ;  and  the  judge 
having  directed  as  to  that  fact,  a  new  trial  was  granted.  Jackson  v.  Joy,  9 
Johns.  Ki-2. 

Where  a  boundary  line  in  a  partition  deed  was  in  dispute,  defendant  may 
protect  himself,  by  showing  possession  under  the  line  for  thirty-eight  years. 
But  he  protects  himself  only  by  his  adverse  possession,  and  cannot  show  a 
mistake  in  the  deed  by  parol.  Jackson  v  Boicen,  1  Caines'  Rep.  358. 

A  parol  agreement  for  partition,  and  a  corresponding  possession  (or  twenty 
years,  is  conclusive  in  ejectment.  Boyd  v.  Graves,  4  \\heaton,  613.  Ebert  v. 
Wood,  \  Biiuiey,  216. 

A  possession  fence  made  by  felling  trees,  and  lapping  them  one  upon  an- 
other around  a  lot,  will  not  suffice  to  make  out  an  adverse  possession,  when 
that  is  the  only  defence,  and  to  countervail  a  legal  title  ;  but  there  must  be  a 
substantial  enclosure,  and  real  occupancy,  a  possessio  pedis,  definite,  positive, 
and  notorious.  Jackson  v.  Schoonmaker,  2  Johns.  230. 

It  stem*  to  have  been  decided  by  the  Supreme  Court  of  Pennsylvania,  in 


ACTION  OF  EJECTMCN  S.  49 

party  is  consistent  with  the  title  of  the  other,  when  the 
party  claiming  title  has  never  in  contemplation  of  law  been 
out  of  possession,  and  when  the  possessor  has  acknowledg- 
ed a  title  in  the  claimant. 


the  case  of  Burns  v.  Sic(/Y,  (2  Sergeant  &.  Rawle,  439.)  that  an  adverse  pos- 
session of  part  ot  disputed  premises,  is  au  adverse  possession  of  the  whole. 

A  possession  of  a  lot  of  land,  commencing',  adversely,  twenty-five  years 
•go,  by  a  clearing  of  four  or  five  acres,  without  showing  on  what  part  such 
ek-iiiinc;  was  inaile,  and  a  regular  deduction  of  title,  and  a  priority  and  con- 
tinuity of  possession  down  to  the  defendant,  is  not  such  an  adverse  posses- 
sion as  will  bar  the  plaintiff  Jackson  v.  Campbell,  10  Johns.  475. 

If  defendant,  iti  ejectment,  set  up  the  act  of  limitations,  he  must  stand  on 
bi>  o.vn  pt'.'.scsMon,  and  cannot  call  in  the  possession  of  one  whose  title  the 
plaintiff  has  purchased  to  assist  him.  C/uggage  v.  Duncan,  1  Sergeant  & 
Raxvlc,  111. 

If  a  person,  recovering  in  ejectment,  neglects  to  enforce  his  recovery  within 
the  time  laid  in  his  dcmiM:,  his  right  of  entry  is  gone,  and  his  recovery  will 
not  avail,  to  take  the  case  out  of  the  statute  of  limitations.  Jackwii  v.  llavi- 
liuul,  13  Johns.  229. 

A.  enters  into  possession,  under  a  lease  in  fee,  in  1775,  and  gives  the  land 
to  B.  by  parol,  who  continues  in  possession  (except  during  the  war,  a  year  or 
two  i  until  1798,  and  conveys  to  ('.,  who  conveys  to  D. ;  it  was  held  a  suffi- 
cient adverse  possession,  to  bar  an  ejectii<eut  commenced  in  1807.  Jackson, 
v.  Moore,  13  Johns.  513.  , 

The  statute  of  limitations  will  not  affect  the  right  of  a  reversioner,  or  re- 
mainderman, if  a  particular  estate  existed  at  the  time  the  adverse  possession 
began,  because  the  right  of  entry  does  uol  then  exist.  Jacxson  v.  Schoonrnaker, 
4  Johns.  31H).  Jackson  v.  Sellickfi8  Johns.  262. 

\\  here  owners  of  adjoining  lands  have  agreed  on  a  fence,  variant  from  the 
linet  in  their  deeds,  avowedly  for  convenience,  hut  continue  to  claim  accord- 
ing  to  the  true  line,  neither  party  acquires  a  title  by  possession,  merely  on 
account  of  the  fence.  Bttrrell  v.  Burrcll,  11  Mass  Rep.  294. 

If  a  person  takes  possession  of  land,  under  one  tenant  in  common,  he  can- 
lot  set  up  his  possession  as  adverse  to  another  tenant  in  common,  though  the 
part  so  possessed  by  him,  happen  to  fall  to  such  other  joint  tenant.  Jackton 
\.  Creal  and  Kellogg,  13  Johns.  116. 

But  where  a  man  purchases,  and  takes  a  deed  of  a  whole  lot,  supposing  that 
be  obtained  a  title  to  the  whole,  though  it  turn  out  that  the  grantor  owned  hut 
one-ninth,  still  the  possession,  under  such  deed,  is  adverse  as  to  the  other  pro- 
prietors, and  the  grantee  will  be  deemed  to  have  eaurea  M  *ol«  «w«er  •!  flic 
n-holr  lot.  Jackton  v.  Smith,  13  Johns.  <Ktf. 

7 


~)0  OF  THi;  TITI.L  M-KT.SSAUV   IIS   THE 

First,  where  the  parties  claim  under  the  same  title. 

As  if  a  man  seised  of  certain  land  in  fee  have  issue  two 
sons,  and  die  seised,  and  the  younger  son  enter  by  abate- 
ment into  the  land,  the  statute  will  not  operate  against  the 
elder  son ;  for  when  the  younger  son  so  abates  into  the 
land  after  the  death  of  his  father,  before  any  entry  made  by 
the  elder  son,  the  law  intends  that  he  entered,  claiming  as 
heir  to  his  father,  by  which  title  the  elder  son  also  claims. (/c) 
So,  also,  if  the  defendant  should  make  title  under  the  sister 
of  the  lessor  of  the  plaintiff,  and  prove  that  she  had  en- 
joyed the  estate  above  twenty  years,  and  that  he  had  en- 
tered as  heir  to  her,  the  court  would  not  regard  it,  because 
her  possession  would  be  construed  to  be  by  courtesy,  and 
not  to  make  a  disherison,  but,  by  licence,  to  preserve  the 
possession  of  the  brother,  and,  therefore,  not  within  the  in- 
tent of  the  statute  ;  though,  if  the  brother  be  once  in  ac- 
tual possession,  and  ousted  by  his  sister,  it  would,  it  seems, 
be  otherwise,  for  then  her  entry  could  not  possibly  be  con- 
strued to  be  to  preserve  his  possession. (/) 

Secondly,  where  the  possession  of  one  party  is  consis- 
tent with  the  title  of  the  other. 

Thus,  where,  by  a  marriage  settlement,  a  certain  copy- 
hold estate  of  the  wife  was  limited  to  the  use  of  the  survi- 
vor in  fee,  but  no  surrender  was  made  to  the  use  of  the  set- 
tlement, and  after  the  death  of  the  wife,  the  husband  was 
admitted  to  the  lands,  pursuant  to  the  equitable  title,  acquired 
by  the  settlement,  it  was  held  that  if  he  had  had  no  other 
title  than  the  admission,  a  possession  by  him  for  twenty 

(jfc)  Co.  Litt.  s.  396.  Sharrington  v.  Strotton,  Plow.   298, 

(J)  B.  N.  P.  102,   Co.  Litt.  242,  (6).    306. 


ACTION  OF  EJECTMENT.  >l 

years  would  have  barred  the  heir-at-law  of  the  wife  ;  but 
as  it  appeared  that  there  was  a  custom  in  the  manor  for 
the  husband  to  hold  the  lands  for  his  life,  in  the  nature  of 
a  tenant  by  the  courtesy,  and  this  without  any  admittance 
after  the  death  of  the  wife,  the  possession  of  the  copyhold 
by  the  husband  was  referred  to  this  title,  and  not  to  the  ad- 
mission under  the  settlement ;  and  such  possession  being 
consistent  with  the  title  of  the  heir  at  law,  he  was  allowed 
to  maintain  ejectment  against  the  devisee  of  the  husband, 
within  twenty  years  after  the  husband's  death,  though  more 
than  twenty  years  after  the  death  of  the  wife.(m) 

And  although  one  third  part  of  the  premises  had  been 
settled,  many  years  before  the  marriage,  upon  a  third  per- 
son for  life,  and  the  steward  of  the  manor,  appointed  by 
the  heir-at-law  and  her  husband,  had  constantly  debited 
himself  with  the  receipt  of  two-thirds  of  the  rent  for  the 
husband,  on  account  of  his  wife,  and  the  remaining  one- 
third  for  the  annuitant ;  yet,  as  no  surrender  had  been  made 
to  the  trustees  of  the  annuitant,  it  was  held,  that  such  pay- 
ment to  him  must  be  taken  to  be  with  the  consent  of  the 
person  entitled  by  law  to  the  whole  premises,  so  as  to  do 
away  the  notion  of  adverse  possession  by  the  husband  of 
that  third,  distinct  from  his  possession  of  the  other  two- 
thirds,  as  tenant  by  the  courtesy  after  the  wife's  death. 

So,  also,  where  a  copyholder,  with  the  licence  of  the  lord, 
leased  the  copyhold  lands  for  forty  years,  with  a  proviso 
for  re-entry,  if  the  rent  should  be  in  arrear,  and  made  a  will, 
devising  such  copyhold  lands  to  A.,  and  died,  twenty  years 
of  the  lease  being  then  unexpired,  and  the  heir-at-law  re- 
ceived the  rent  from  the  lessee,  from  the  time  of  the  death 

(m)  Doc,  il.  MHncr,  v.  Brigliltccn,  10  Knsl,  688. 


52  OF  THE  TITLE  NECESSARY   IN    THE 

of  the  copyholder  until  the  expiration  of  the  lease,  and  for 
ten  years  afterwards,  when  the  devisee  brought  an  action 
of  ejectment ;  it  was  holden,  that  the  devisee  was  not  barred 
of  this  remedy  by  the  statute  of  limitations,  although  more 
than  twenty  years  had  elapsed  from  the  time  of  the  death 
of  the  testator,  and  the  forfeiture  of  the  lease,  by  non-pay- 
ment of  rent  to  the  devisee;  for,  until  the  termination  of 
the  lease,  the  devisee  had  no  right  to  enter,  except  for  the 
forfeiture ;  and  although  he  might  have  entered  by  reason 
of  the  forfeiture,  yet  he  was  not  bound  to  do  so. (74) 

So,  also,  where  the  rents,  issues,  and  profits  of  a  trust  es- 
tate were  received  by  a  ccstui  que  trust  for  more  than  twenty 
years  after  the  creation  of  the  trust,  without  any  inter- 
ference of  the  trustees,  such  possession,  &c.  being  consistent 
with,  and  secured  to,  the  cestui  que,  trust,  by  the  terms  of  the 
trust-deed,  the  receipt  was  held  not  to  be  adverse  to  the 
title  of  the  trustees,  so  as  to  bar  their  ejectment  against  the 
grantees  of  the  cestui  que  trust,  brought  after  the  twenty 
years.(o)  And,  indeed,  as  the  cestui  que  trust  is  a  tenant  at 
will  (p)  to  the  trustees,  and  his  possession  is  the  possession 
of  the  trustees,  the  statute  will  never  operate  between 
trustee  and  cestui  que  trust,  except  in  very  particular  cases ; 
although  it  seems,  that  if  a  cestui  que  trust  sell  or  devise  the 
estate,  and  the  vendee  or  devisee  obtain  possession  of  the 
title  deeds,  and  enter,  and  do  no  act  recognizing  the  trus- 
tee's title,  the  statute  will  operate  from  the  time  of  such 
entry.(?)[5] 

(n)  Doe,  d.  Cook,  r.  Danvers,  ^  East,  (p)  Gree  v.  Rolle,  Ld.  Raym.  716. 

299  (q)  Vide  Sugden's  Vendors  and  PUT- 

(o)  Keane,  d.  Lord  Byron,  v.  Dear-  chasers,  2  Edit.  241. 
don,  8  East,  248. 

f6]  As  long  as  a  trost  subsists,  the  right  of  a  ctt/ut  ijue  tnist  cannot  be  bar- 


ACTION  OF  EJECTMENT.  58 

In  like  manner  the  payment  of  interest  upon  n  mortgage 
will  prevent  the  statute  from  running  against  the  mort- 
gagee, although  he  may  not  have  been  in  possession  of  the 
lands  for  upwards  of  twenty  years,  because  such  possession 
is  consistent  with  the  original  agreement  of  the  parties.(r) 

.It  seems  as  yet  a  very  unsettled  point,  whether  an  en- 
croachment upon  the  waste  adjoining  to  the  demised  pre- 
mises, by  a  lessee,  and  uninterrupted  possession  thereof  by 
him  for  twenty  years,  shall  give  to  the  lessee  a  possessory 
right  thereto,  or  whether  he  shall  be  deemed  to  have  en- 
closed the  waste,  in  right  of  the  demised  premises,  for  the 
benefit  of  the  lessor  after  the  expiration  of  the  term.  Lord 
Kenyon,  C.  J.,  .Lee,  C.  J.,  and  TJiompson,  B.,  have  held 
that  the  encroachment  belongs  to  the  lessee,  whilst,  on  the 
other  hand,  Heath,  J.,  Buller,  J.,  Perryn,  B.,  and  Graham, 
B..  have  held  that  the  landlord  is  entitled  to  it.(s) 

But,  at  all  events,  it  seems  clear,  that  such  possession 
will  be  adverse  to  the  rights  of  the  commoners,  and,  indeed, 
to  the  lord  himself,  excepting  as  landlord  at  the  expiration 
of  the  lease.(<) 


(r)  Hatcher  v.  Ftneitr,  Lord  Raym.  nor,  v.  Dane*,  1  Esp.  461.  Bryan,  4. 

740.  Child,  v.  H'inwood,  1  Taunt.  208. 

(»)  Doe,  d.  Colclough,  r.  Mullincr,  (t)  Creadi  v.  Wilmot,  2  Taunt.  160, 

1    Esp.  460.      Creach   v.    Wilmot,  2  (tnno/u.) 
Taunt.  160,   (in  notis.)  Doe,  d.  ChaU- 


red  by  the  length  of  time,  during  which  he  has  been  out  of  possession.  3  Johns. 
Ch.ui.  Rep.  216.  Decouehe  v.  Saretier. 

Trusts  are  not  strictly  within  the  statute  of  limitation!),  but  equity  has  wisely 
adopted  the  principle  of  the  act.  IFo//ace  v.  Dujfidd,  2  Serjeant  L  Rawle's 
Reports,  527. 

Possession  of  the  eestui  qut  tnut,  is  not  adverse  to  the  title  of  the  trustee. 
Smi//i  v.  King,  16  East,  283. 


54  OF  THE  TITLE  NECESSARY  IN  THE 

It  should,  however,  be  observed,  that  although  twenty 
years  peaceable  possession  will  undoubtedly  be  a  good  title 
against  the  lord,  qua  lord,  if  the  possession  were,  in  the  first 
instance,  taken  in  defiance  of  him,  and  no  acknowledgment 
at  any  time  afterwards  made,  yet,  that  if  the  possession  be 
at  first  by  the  lord's  permission,  or  the  party  subsequently 
make  an  acknowledgment  that  the  lands  were  originally  go 
taken,  the  statute  will  never  run  against  the  lord  ;  for  the 
possession  of  a  tenant  at  will,  for  ever  so  many  years,  is  no 
disseisin.(w)[6] 

Thirdly,  an  adverse  possession  will  be  negatived  when 
the  party  claiming  title  has  never,  in  contemplation  of  law. 
been  out  of  possession. 

Thus,  when  A.  devised  lands  to  12.,  and  his  heirs,  and 
died,  and  B.  died,  and  the  heir  of  B.,  and  a  stranger  en- 
tered and  took  the  profits  for  twenty  years,  upon  ejectment 
brought  by  the  devisee  of  the  heir  of  D.  against  the  stranger, 
it  was  held  that  this  perception  of  the  rents  and  profits  by 
the  stranger  was  not  adverse  to  the  devisee's  title ;  because, 
when  two  men  are  in  possession,  the  law  adjudges  it  to  be 
the  possession  of  him  who  hath  the  right :  the  lessor  of  the 
plaintiff,  and  the  defendant,  were  not  tenants  in  common, 
for  the  defendant  was  a  mere  stranger ;  and,  though  he  took 

(«)  B.  N.  P.  104. 


[6]  A  purchaser  at  sheriff's  sale,  becomes  quasi  tenant,  and  is  not  presumed 
to  hold  adversely.  Jackson  v  Graham,  3  Caines'  Rep.  188. 

The  possession  of  a  defendant  after  a  sale,  und«r  an  execution,  can  in  no 
sense  be  deemed  adverse  to  the  purchaser,  for  he  is  quasi  tenant  at  will,  un- 
til an  actual  disseisin ,  or  disclaimer,  ou  bis  part.  Jackson  v.  Sternbergh,  1  Johns. 
Cas.  163. 


ACTION  OF  EJECTMENT.  55 

a  moiety  of  the  profits,  that  would  not  make  him  a  tenant 
in  common  ;  for  a  man  cannot  disseise  another  of  an  undi- 
vided moiety,  as  he  may  of  such  a  number  of  acres.('p) 

From  the  principle  that  the  possession  of  one  joint  tenant, 
parcener,  or  tenant  in  common,  is  prima  facie  the  possession 
of  his  companion  also,(z«)  it  follows,  that  the  possession  of 
the  one  can  never  be  considered  as  adverse  to  the  title  of 
the  other,  unless  it  be  attended  by  circumstances  demon- 
strative of  an  adverse  intent ;  or,  in  other  words,  whenever 
one  joint  tenant,  tenant  in  common,  or  parcener,  is  in  pos- 
session, his  fellow  is,  in  contemplation  of  law,  in  possession 
also  ;  and  it  is  necessary  to  prove  an  actiial  ouster,  to  rebut 
this  presumption.[7] 

Some  ambiguity,  indeed,  seems  formerly  to  have  prevail- 


(r)  Reading  v.  Rawsterne,  Ld.  Raym.    v.  Dale,  Hob.  120.      Doe,  d.  Barnel, 
829.  v.  Keen,  7  T.  R  386. 

(it)  ford  v.  Gray,  Salk.  286.  Smalu 


[7]  Where  A.  was  tenant  in  common  of  a  lot,  with  eight  others,  and  con- 
veyed the  whole  lot  to  B.,  (stating  himself  to  be  the  owner  of  the  whole,)  and 
B.  conveyed  the  whole  lot  to  C.,  who  entered  into  possession,  it  was  held,  that 
the  doctrine  relative  to  the  possession  of  tenants  in  common  did  not  apply, 
and  that  the  possession  of  C.  was  adverse  as  to  the  whole  lot ;  that  deeds,  exe- 
cuted by  the  eight  co-tenants  to  D.,  subsequent  to  the  conveyance  to  C.,  were 
inoperative  and  void  ;  and  that  releases,  by  the  eight  co-tenants  to  A  ,  subse- 
qnent  to  their  deeds  to  D.,  enured  to  the  benefit  of  C.  Jackson  v.  Smith,  13 
Johns.  4116. 

A  person  who  has  entered,  by  permission  of  one  tenant  in  common,  can- 
not  (a  partition  having  been  made)  set  up  a  title  adverse  to  the  other  co-tenant. 
Jackson  v.  Creed  and  Kellogg,  13  Johns.  116. 

Where  adverse  possession  is  relied  on,  plaintiff  may  show  that  defendant 
entered,  claiming  to  be  tenant  in  common  with  the  plaintiff',  without  being 
obliged  to  admit  the  fart,  that  defendant  was,  iu  tact,  a  tenant  in  common 
with  plaintiff.  Smith  T.  Bvrtis,  9  Johni.  174. 


/k>  OF  THE  TITLE  MCCESSARY   IN  THE 

od,  as  to  the  meaning  of  the  word  actual  ouster,  as  though  it 
•••i^Miiied  some  act  accompanied  by  real  force  ;\x)  but  it  is 
now  clear,  that  an  actual  ouster  may  be  inferred  from  cir- 
cumstances, which  circumstances  are  matter  of  evidence  to 
be  left  to  the  jury.  Thus,  thirty-six  years  sole  and  uninter- 
rupted possession  by  one  tenant  in  common,  without  any  ac- 
eount  to,  demand  made,  or  claim  set  up  by,  his  companion, 
was  held  to  be  sufficient  ground  for  the  jury  to  presume  an 
actual  ouster  of  the  co-tenant,  and  they  did  so  presume. (y) 

So,  also,  if  upon  demand  by  the  co-tenant  of  his  moiety, 
the  other  refuse  to  pay,  and  deny  his  title,  saying  he  claims 
the  whole,  and  will  not  pay,  and  continue  in  possession,  such 
possession  is  adverse,  and  ouster  enough. (z)  And,  in  like 
manner,  where  there  were  two  joint  tenants  of  a  lease  for 
years,  and  one  bade  the  other  go  out  of  the  house,  and  he 
went  out  accordingly,  this  was  held  to  be  an  actual  ouster.(a) 

Upon  the  same  principle,  although  the  entry  of  one  is, 
generally  speaking,  the  entry  of  both,  yet  if  he  enter  claim- 
ing the  whole  to  himself,  it  will  be  an  entry  adverse  to  his 
companion. (6)  But  where  there  was  no  circumstance  to 
induce  a  supposition  of  an  actual  ouster,  but  a  bare  per- 
ception of  the  profits  by  one  tenant  in  common  for  twenty- 
six  years,  the  possession  was  held  not  to  be  adverse. (r) 
And  where  a  tenant  in  common  levied  a  fine  of  the  whole 
premises,  and  afterwards  took  all  the  rents  and  profits  for 


(x)  Fairdaim,  d.  Fotc/er,  v.  Shack-    217.     Doe,  d.  Hdlings,  v.  Bird,  11 
fcton,  Burr.  2604.  East,  49. 

(y)  Doe,  d.  Fiihar,  T.  Proaer,  Cowp.         (a)  Vin.  Ab.  v.  14.  512. 
217.  (6)  Vin.  Ab.  14. 612. 

(3)  Doe,  d.  Fishar,  v.  Prosxr,  Cowp.        (r)  Fairrtmm,  d.  Fmeler,  \.  Shad-- 

Itton,  5  Burr.  2604. 


ACTION  OF  EJECTMENT.  57 

lour  or  five  years,  but  it  did  not  appear  that  he  held  adverse- 
ly at  the  time  of  levying  the  line,  it  was  held  that  such  line 
and  receipt  were  not  sufficient  evidence  of  an  ouster  of  his 
companion. (r/) 

If,  however,  in  cases  of  joint  tenancy,  &c.  there  be  suf- 
ficient evidence  of  an  actual  ouster,  the  statute  will  run  "as 
in  other  cases. 

Upon  the  principles  here  established,  the  possession  of 
one  heir  in  gavelkind  is  not  the  possession  of  the  other,  if  he 
enter  with  an  adverse  intent  to  oust  the  other.(e) 

Fourthly,  when  the  possessor  has  acknowledged  a  title 
in  the  claimant. 

Thus,  where  a  lease  for  a  long  term  had  been  granted,  by 
the  lord  of  the  manor,  to  the  rector,  in  which  the  lessee  co- 
venanted for  himself,  his  executors,  and  assigns,  to  pay, 
during  the  continuance  of  the  term,  a  certain  annual  rent, 
and  also  all  the  tithe  straw  of  wheat  and  rye  within  the  pa- 
rish, and  the  lessee  and  his  assigns  (the  succeeding  rectors) 
continued  in  possession  for  twenty  years  and  upwards  after 
the  expiration  of  the  term,  without  payment  of  rent,  but 
during  that  twenty  years  suffered  the  heir  of  the  lessor  to 
take  the  tithe  of  the  wheat  and  rye  straw ;  it  was  held,  that 
such  sufferance  was  evidence  of  an  agreement  between  the 
lessor  and  lessee,  or  their  heirs  and  assigns  respectively, 
that  the  lessee,  or  his  assigns,  should  continue  his  posses- 
sion, if  the  lessor,  and  his  heirs,  were  permitted  to  receive 

(J)  Peaceable,    d.    Hornblowcr,  v.    ry  v.  Windsor,  2  Atk.  630,  632. 
Read,  1  East,  6<>8,  574.  .Serf  rtrfe  Mo-        (e)  Davenport  v.  Tyrrell,  Black.  675. 

8 


58  OF  THE  TITLE  NECESSARY   IN  THE 

the  tithe  as  hefore,  and  that,  consequently,  there  was  no  ad- 
verse holding  in  the  assignee  of  the  lessee.(/)[8] 

(/)  Roe,  d.  Pellat,  v.  Ferrars,  1  Bos.  and  Pull.  542. 


[8]  The  repeated  application  of  the  defendant  to  the  plaintiff,  to  purchase 
the  premises,  affords  a  strong  presumption  that  he  caine  in  possession  under 
the  plaintiff.  Jackson  \.  Cray,  12  Johns.  427. 

Where  the  defendant's  entry  was  without  any  claim  or  colour  of  title,  hig  pos- 
session will  he  adjudged  to  be  in  subservience  to  the  legal  owner.  The  statute 
will  not  begin  to  run  until  his  possession  is  avowedly  adverse.  Jackson  v.  Par- 
ker, 3  Johns.  Cas.  124.  Jackson  v.  Sharp,  9  Johns.  163. 

When  such  person  acquires  what  he  considers  a  good  title,  and  no  privity 
exists  between  him  and  the  real  owner,  from  that  moment  his  possession  be- 
comes adverse.  Jackson  v.  Thomas,  16  Johns.  293,  301. 

A  person  entering  under  a  lease  for  three  years,  and  holding  over  for  more 
than  forty  years,  does  not,  thereby,  gain  a  possession  adverse  to  his  lessor ; 
and  a  person  coming  in  under  the  lessee,  will  be  considered  as  holding  under 
the  same  title.  Brandter  v.  Marshall,  1  Caines'  Rep.  394. 

Where  A.  went  into  possession  of  land,  under  an  agreement  made  with  B., 
for  the  purchase,  and  C.  afterwards  took  possession,  und^r  an  agreement  with 
A.,  for  the  purchase,  the  possession  of  C.  was  held  not  to  be  adverse  to  the  title 
of  B.  Jackson  v.  Bard,  4  Johns.  230. 

A.  entered  into  possession  of  lands  without  title,  and  afterwards  entered  into 
a  contract  with  T.,  who  covenanted  to  give  him  a  deed  ;  A.  assigned  the  con- 
tract to  S.,  who  took  possession,  and  received  a  deed  from  T.,  aiid  afterwards 
a  deed  from  B.,  the  true  owner  and  patentee.  It  was  held,  that  the  original 
possession  of  A.,  being  without  title,  was  to  be  deemed  the  possession  of  B.,  the 
patentee,  and  that  the  possession  of  S.,  under  the  covenant  from  A.  to  S.,  was 
not  adverse.  Jackson  v.  Sharp,  9  Johns.  163. 

A.  enters  on  land  in  1770,  and  in  1786  receives  a  deed  from  his  father  and 
mother,  which  was  not  acknowledged  by  the  mother,  to  whom  the  title  be- 
longed by  inheritance;  it  was  held,  that  the  acceptance  of  the  deed  was  suf- 
ficient to  repel  parol  evidence,  that  A.  entered  adversely  to  his  mother's  title, 
and  that  had  the  possession  previously  been  adverse,  it  ceased  to  be  so  on  ac- 
cepting the  deed.  Jackson  v.  Sears,  10  Johns.  435. 

Possession  of  the  mortgagor  is  not  adverse  to  the  mortgagee.  Higginton 
v.  Mein,  4  Cranch,  415. 

But  where  more  than  forty  years  had  elapsed  after  the  execution  of  a  mort- 
gage, and  neither  the  original  deed,  nor  the  collateral  security,  were  produced, 
these  circumstances  afforded  a  sufficient  presumption  that  the  money  had  been 
paid.  Inches  v.  Leonard,  12  Mass.  Rep.  379. 


ACTION  OF  EJECTMENT.  59 

To  enable  a  party  to  take  advantage  of  the  extension  of 
time  granted  by  the  second  section  of  this  statute,  it  is  ne- 
cessary that  the  disability  to  enter  should  exist  at  the  time 
when  his  title  accrued ;  for  if  he  had  the  power  to  enter, 
but  for  an  instant,  no  subsequent  disability  will  be  sufficient 
to  arrest  the  operation  of  the  statute. [9]  And  the  princi- 
ple is  the  same  where  a  disability,  existing  at  the  time  of 
the  commencement  of  the  title,  is  afterwards  removed,  and 
a  subsequent  disability  ensues ;  the  statute  continuing  to 
run,  notwithstanding  the  second  disability.  It  was  once, 
indeed,  endeavoured  to  distinguish  between  cases  of  volun- 
tary and  involuntary  disability  in  this  respect,  and  to  main- 
tain that  an  involuntary  disability,  as  insanity,  occurring 
after  the  statute  had  begun  to  run,  would  suspend  its  pro- 
gress, but  the  argument  was  overruled,  upon  the  principle 
that  a  different  construction  had  always  been  given  to  all 
the  statutes  of  limitations,  and  that  such  nice  distinctions 
would  be  productive  of  mischief. (g) 

It  was  said,  by  Lord  Chancellor  Hardwicke,  that  if  a  man, 
both  of  non-sane  memory  and  out  of  the  kingdom,  come 
into  the  kingdom,  and  then  go  out  of  the  kingdom,  his  non- 
sane  memory  continuing,  his  privilege,  as  to  being  out  of 


(g)  Doe,  d.  Duroure,  v.  Jones,  4  T.     Plow.  366. 
R.  300 ;  et  tide  Stowell  v.  Ld.  Zoueh, 


[9]  So,  where  a  tide  accrued  to  an  infant  female,  who  afterward*  married, 
•he  must  commence  her  ejectment  within  ten  years  after  coming  of  age,  pro- 
Tided  twenty  years  have  elapsed  since  the  death  of  the  person  last  seised. 
Demurest  v.  Wynkoop,  3  Johns.  Chanc.  Rep.  129. 

If  adverse  possession  begins  to  run  during  the  life  of  the  ancestor,  the  in- 
fant heir  it  not  protected  by  disability.  Jackson  v.  Moore,  13  Johns.  513. 
Jackton  v.  Robins,  15  Johns.  169. 


60  OF  THE  TITLE  NECESSARY  IN  THE 

the  kingdom,  is  gone ;  and  his  privilege,  as  to  non-sane 
memory,  will  begin  from  the  time  he  returns  to  his  senses.(A) 

When  the  ancestor,  to  whom  the  right  first  accrues,  dies 
under  a  disability,  which  suspends  the  operation  of  the  sta- 
tute, his  heir  must  make  his  entry  within  ten  years  next  af- 
ter his  ancestor's  death,  provided  more  than  twenty  years 
have  elapsed  from  the  time  of  the  commencement  of  the 
ancestor's  title,  to  the  time  of  the  expiration  of  the  ten 
years,  (t) 

It  was  once,  indeed,  contended  that  the  meaning  of  this 
second  section  of  the  statute  was,  to  allow  every  person  at 
least  twenty  years  after  their  title  accrued,  if  there  were  a 
continuing  disability  from  the  death  of  the  ancestor  last 
seised,  and  ten  years  more  to  the  heir  of  the  person  dying 
under  a  disability,  which  ten  years  were  in  addition  to  the 
twenty  years  allowed  by  the  first  clause.  But  it  was  justly 
observed  by  the  court,  that  if  this  construction  obtained, 
there  was  no  calculating  how  far  the  statute  might  be  car- 
ried by  parents  and  children  dying  under  age,  or  continu- 
ing under  other  disabilities  in  succession ;  that  the  word 
death,  in  the  second  clause,  meant  and  referred  to  the  death 
of  the  person  to  whom  the  right  first  accrued,  and  was  pro- 
bably introduced  in  order  to  obviate  the  difficulty  which 
had  arisen  in  the  case  of  Stowell  v.  Lord  Zouch,(j)  upon 
the  construction  of  the  statute  of  fines,  from  the  omission 
of  that  word ;  and,  that  the  statute  meant  that  the  heir  of 
every  person,  to  which  person  a  right  of  entry  had  accrued 
during  any  of  the  disabilities  there  stated,  should  have  ten 

(ft)  Sturt  v.  MelliA,  2  Alk.  610, 614.         (/)  Plow.  366. 
ft)   Doe,  d.   George,  v.  Jeaon,  6 
East,  80. 


ACTION  OF  EJECTMENT.  61 

years  from  the  death  of  his  ancestor,  to  whom  the  right  first 
accrued  during  the  period  of  disability,  and  who  died  under 
such  disability,  notwithstanding  the  twenty  years,  from 
the  first  accruing  of  the  title  to  the  ancestor,  should  have 
before  expired.(£)[l] 

Having  thus  discussed  the  general  principles  of  the 
action,  that  a  claimant  in  ejectment  must  have  both  the 
legal  and  possessory  title,  the  particular  persons,  who,  by 
reason  of  their  estate  and  interest  in  the  lands,  are  entitled 
to  this  action,  must  next  be  considered ;  remembering  al- 
ways, that  a  right  of  entry  or  possession  is  supposed  to  ac- 
company their  legal  title. 

1.  TENANT  FOR  YEARS — FOR  LIFE — IN  TAIL — OR  IN  FEE. 

It  has  been  said  by  a  learned  writer,  that  a  tenant  for 
years  cannot  before  entry  maintain  an  action  of  trespass,  or 
ejectment ;  because  those  acts  complain  of  a  violation  of  the 
possession,  and  therefore  cannot  be  maintained  by  any  per- 
son who  has  not  had  an  actual  possession ;(/)  but  this  rea- 
soning does  not  seem  applicable  to  the  modern  principles 
of  the  remedy  by  ejectment. (m) 

(i)  Doe,  d.  George,  v.  Jcsson,  6  (m)  Goodrighl,  d.  Hare,  v.  Calor, 
East,  80,  Doug.  477. 486. 

(0  1  Cru.  Dig.  248.  et  vide  4  Bac. 
Ab.  183. 


[1]  This  question  is  most  ably  discussed,  and  the  English  and  American 
decisions  reviewed,  by  Chancellor  Kent,  in  Demarest  v.  Wynkoop,  3  Johns. 
Chanc.  Rep.  129. 

In  that  case  it  was  decided,  that  the  construction  of  the  statute  was  the 
<ame  in  equity  as  at  law,  and  that  twenty  years  possession  by  a  mortgagee, 
is  a  bar  to  the  equity  of  redemption. 


62  OF  THE  TITLE  NECESSARY   IN  THE 

2.  MORTGAGEE. 

When  a  person  is  in  possession,  under  a  lease  granted  by 
the  mortgagor  prior  to  the  mortgage,  the  mortgagee  will 
be  bound  by  it  ;(n)  but  if  the  lease  be  made  subsequently 
to  the  mortgage,  without  the  privity  of  the  mortgagee,  it 
will  be  no  defence  to  an  ejectment  brought  by  the  mort- 
gagee ;  because  the  mortgagor  has  no  power  to  let  leases 
not  subject  to  every  circumstance  of  the  mortgage.  (o)  The 
principle  extends  also  to  cases  where  the  party  in  posses- 
sion is  tenant  from  year  to  year  to  the  mortgagor.(/>) 

If  the  mortgagee  assign  the  mortgage,  and  the  assignee 
assign  to  another,  the  last  assignee  may  maintain  eject- 
ment for  the  mortgaged  premises.  (q) 

If  there  be  two  several  mortgagees  of  the  same  lands, 
the  mortgagee  who  has  the  legal  estate  will  be  entitled  to 
recover  in  an  ejectment  against  the  other  mortgagee,  al- 
though his  mortgage  be  posterior  in  point  of  time.  As, 
where  a  term  had  been  created  to  attend  the  inheritance, 
and  the  lands  were  afterwards  mortgaged  to  A.,  who  took 
no  assignment  of  the  term,  but  had  possession  of  the  other 
title-deeds,  and  the  same  lands  were  subsequently  mort- 
gaged to  J5.,  who  took  an  assignment  of  the  term,  it  wag 
held  that  B.  might  recover  the  possession  against  .tf. 


(n)  Doe,  d.  Da  Cotta,  v.  JVharton,  (p)  Thunder,  d^Weaver,  v.  Belcher, 
8T.  R.  2.  3  East,  449.  * 

(o)  Keech,  d.  Warne,  v.  Hall,  Doug.  (?)  Smartte,  v.  Williams,  Salk.  245. 
21.  (r)  Goodlitle,  d  JVorru,  v.  Morgan, 

1  T.  R.755. 


[2]  A  mortgage  not  registered  has  a  preference  over  a  subsequent  judg- 
mont  docketed,  for  the  statute  provides  only  for  subsequent  mortgages,  and 


ACTION  OF  EJECTMENT.  63 

3.  LORD  OP  A  MANOR. 

When  the  tenant  of  copyhold  premises  has  committed  an 
act  by  which  he  forfeits  his  lands,  he  who  is  lord  at  the  time 


/until  f:<lc  purchasers.  But  should  a  sale  take  place  under  the  judgment  be- 
fore the  registry,  the  vendee  of  the  sheriff  would  stand  in  the  light  of  a  bona 
fide  purchaser,  and  would  be  protected  against  the  mortgage.  Jackson  v.  Du- 
bois,  4  Johns.  216. 

A  mortgage  cannot  be  proved  by  a  recital  in  a  deed,  for  it  may  have  been 
released  since  the  deed.  Jackson  v.  Davit,  18  Johns.  7. 

Although  a  stranger  cannot  set  up  a  mortgage  before  foreclosure  or  entry» 
the  assignee  of  a  mortgage  will  be  protected  by  it,  though  no  foreclosure  of 
it  is  shown.  Jackson  v.  Mitikler,  10  Johns.  480. 

Where  no  possession  was  taken  under  a  mortgage,  or  interest  paid,  or  steps 
taken  to  enforce  it,  for  nineteen  years,  a  jury  might  presume  it  satisfied  ;  but 
(he  period  of  nineteen  years  is  only  a  circumstance  on  which  to  found  a  pre- 
sumption, and  is  not  of  itself  a  bar.  Jackson  v.  Pratt,  10  Johns.  381. 

Where  a  creditor,  by  bond  and  mortgage,  sells,  under  a  judgment  on  the 
bond,  to  a  person  who  has  notice  of  the  mortgage,  the  sale  merely  passes  the 
equity  of  redemption,  but  does  not  affect  the  mortgagee's  lien  on  the  land. 
Jackson  v.  Hull,  10  Johns.  481. 

Where  mortgagee  has  never  entered,  and  no  interest  paid  for  twenty  years, 
the  mortgage  will  be  presumed  satisfied  ;  and  where  a  mortgage  was  not  re- 
gistered, and  it  was  endeavoured  to  repel  the  presumption  of  payment,  by  the 
acknowledgments  of  subsequent  purchasers,  the  evidence  of  notice  to  them,  of 
the  existence  of  the  mortgage,  must  be  clear  and  explicit.  Jackson  v.  Wood, 
12  Johns.  242. 

If  a  legal  tender  is  made  of  the  money  due  on  a  bond  and  mortgage  to  the 
mortgagee,  or  his  assignee  or  attorney,  which  is  refused,  the  debt  remains,  but 
the  land  is  discharged  from  the  mortgage.  Jackson  v.  Crafts,  18  Johns.  110. 

And  where  acts  of  unfairness  and  oppression  were  committed  by  the  auc- 
tioneer, at  a  mortgage  sale,  it  was  held  to  be  fraudulent  and  void,  and  no  title 
passed  to  the  purchaser.  Ibid. 

A  mortgage  to  several  persons,  to  secure  a  joint  debt,  creates  a  joint  te- 
nancy, and  the  mortgaged  estate  survives  ;  but  if  the  mortgage  be  foreclosed, 
and  the  estate  becomes  absolute  in  the  mortgagees,  they  cease  to  hold  as 
joint  tenants,  and  become  tenants  in  common.  Goodwin  v.  Richardson,  11 
Mass.  Rep.  469. 

The  assignee  of  the  administrators  of  a  mortgage  may  maintain  ejectment 
in  his  own  name.  Lessee  of  Simpson  v.  Ammons,  1  Binney,  176. 

After  the  condition  of  a  mortgage  is  performed,  mortgagor  may  maintain 
ejectment  against  mortgagee.  Erskine  v.  Tounsend,  2  Mas*.  Rep.  493. 


64  OF  THE  TITLE  NECESSARY  IN  THE 

of  the  forfeiture  committed,  may  maintain  an  ejectment  for 
the  recovery  of  them ;  but  this  right  is  confined  to  the  lord 
for  the  time  being,  unless  the  act  of  forfeiture  destroy  the 
estate,  and  then  the  heir  of  the  lord,  in  whose  time  it  was 
committed,  may  also  take  advantage  of  it.(*) 

Where,  however,  a  copyholder,  holding  of  a  manor  belong- 
ing to  a  bishopric,  committed  a  forfeiture  by  felling  timber 
during  the  vacancy  of  the  see,  the  succeeding  bishop  was 
allowed  to  maintain  an  ejectment  against  him.(/) 

The  right  of  the  lord  to  maintain  ejectment  against  his 
copyholder,  fora  forfeiture  by  committing  waste,  will  not  be 
taken  away  by  an  intermediate  estate  in  remainder,  between 
the  life  estate  of  the  .copyholder  and  the  lord's  reversion  ; 
for  if  it  were,  the  tenant  for  life,  and  remainderman,  by 
combining  together,  might  strip  the  inheritance  of  all  the 
timber.  (M) 

(s)   Wat.  Copy.  Vol.  1.  324  to  353.         (/)  B.  N.  P.  107. 
Doe,  d.  Tarrant,  v.  Hellier,  3  T.  R.        (M)  Doe,  d.  Folkes,  v.  Clements,  2 
162.  Maul,  and  Bel.  68. 


But  it  will  not  lie  upon  a  mere  tender  of  the  money,  his  only  relief  being  in 
equity.  Hill  v.  Pay  son,  3  Mass.  Rep.  559. 

But  see  the  case  of  Jackson  v.  Crafts,  18  Johns.  110.  above  cited. 

Lands  mortgaged  cannot  be  sold  under  an  execution  against  the  mortgagee, 
before  a  foreclosure  of  the  equity  of  redemption.  Jackson  v.  Willurd,  4 
Johns.  41. 

But  in  Massachusetts,  it  seems,  lands  mortgaged  may  be  taken  in  execu- 
tion against  the  mortgagee.  8  Mass.  Rep.  558.  In  that  state,  by  statute,  a 
mortgagor  has  three  years  to  redeem,  after  the  lawful  entry  of  the  mortgagee, 
for  condition  broken,  and  after  a  sale  of  the  equity  of  redemption  under  exe- 
cution. Before  this  statute,  it  had  been  decided,  that  this  right  of  redeeming 
is  not  liable  to  be  sold  under  a  second  execution,  but  the  whole  estate  left  in 
the  mortgagor  is  a  mere  right  of  pre-emption.  Kellogg  v.  Beers,  12  Mass. 
Rep.  387. 


ACTION  OF  EJECTMENT.  65 

When  an  inclosure  lias  been  made  from  the  waste  for 
12  or  1 3  years,  and  seen  by  the  steward  of  the  same  lord, 
from  time  to  time,  without  objection  made,  it  may  be  pre- 
sumed by  the  jury  to  have  been  made  by  the  license  of  the 
lord,  and  an  ejectment  cannot  be  maintained  by  him  against 
the  tenant,  without  a  previous  notice  to  throw  it  up.(r) 

It  has  never  been  expressly  decided  whether  the  statute 
of  limitations  will  run  against  the  lord,  in  case  of  a  for- 
feiture by  a  copyholder,  and  bar  his  taking  advantage  of  it 
after  a  lapse  of  twenty  years  ;  but,  from  the  language  of 
Lord  Ajenyon,  C.  J.  in  the  case  of  Doe,  d.  Tarrant,  v.  Uellier, 
it  seems  that  its  provisions  would  be  applicable  to  this  as 
well  as  to  all  other  rights  of  entry. (re) 

4.  COPYHOLDER. 

Whilst  the  ancient  practice  of  the  action  of  ejectment 
prevailed,  it  seems  to  have  been  holden,  that  a  copyholder 
could  not  maintain  an  ejectment,  upon  a  demise  for  a  longer 
term  than  a  year,  unless  the  license  of  the  lord  were  first 
obtained,  or  a  special  custom  existed  in  the  manor  enabling 
him  to  make  longer  leases  :  and,  in  some  authorities,  it  is 
even  doubted,  whether  an  ejectment  can  in  any  case  be 
supported  by  a  copy  holder,  (x)  But,  since  the  introduction 
of  the  modern  practice,  these  objections  are  wholly  ob- 
viated, and  the  common  consent  rule  is  now  sufficient  to 
enable  a  copyholder  to  maintain  ejectment. 


(v)   Doe,   d.   Foley,  v.  Wilson,  11     483.      Goodicin   v.   Longhursl,   Cro. 

East,  66.  i'.lir..  635.      Sparks'  cage,  Cro.  Eliz. 

(ID)  3  T.  R.  162 — 172.  676.    Dotcnint>;liati<'s  case,  Owen,  17. 

(.T)  Stephen*,  T.  Eliot,  Cro.  Eliz.    Ecutcourt  v.  Wetki,  1  Lut.  7S#— 803 

9 


66  OP  THE  TITLE  NECESSARY  IN  THE 

As  the  surrcndcr(y)  and  admittance  to  copyhold  lands 
make  but  one  conveyance,^)  the  legal  title  does  not  vest 
in  the  surrenderee  until  after  admittance :  but,  when  the 
admittance  has  been  made,  the  title  relates  back  to  the  time 
of  the  surrender,  against  all  persons  but  the  lord ;  and, 
therefore,  a  surrenderee  may  recover  in  ejectment  against 
his  surrenderor,  or  a  stranger,  upon  a  demise  laid  between 
the  times  of  admittance  and  surrender,  provided  the  ad- 
mittance be  made  before  the  time  of  the  trial.(a) 

Ashurst,  J.  in  delivering  the  judgment  of  the  Court  in 
this  case,  was  of  opinion  that  the  surrenderee  might  main- 
tain ejectment  against  his  surrenderor  on  such  a  demise, 
although  not  admitted  before  the  trial,  because  the  surren- 
deror is  but  a  trustee,  to  his  surrenderee  ;  but  it  should  seem, 
since  the  legal  estate  remains  in  the  surrenderor  until  the 
time  of  admittance,  that  this  doctrine  is  not  applicable  to 
the  present  principles  of  the  action.(^) 


(y)  In  the  case  of  Doe,  d.  Worry,  tance  inserted  in  the  Society's  books, 
v.  Miller,  (1  T.  R.  393.)  it  was  endea-  It  is,  therefore,  evident,  that,  after 
voured  to  assimilate  to  copyhold  the  first  surrender,  the  le«ral  estate 
principles,  the  practice  of  the  Socie-  always  remains  in  the  Treasurer  and 
ty  of  New  Inn,  in  granting  out  their  Ancients,  as  trustees  f«r  the  subse- 
chambers  for  lives.  It  is  customary  quent  transferrees  respectively,  and 
with  that  society,  in  such  grants,  to  that  the  terms  sitiretidtr  and  adtnit- 
insert  a  clause,  that  the  tenant  shall  tance  bear  not  the  siightcst  resem- 
not  sell  or  assign,  without  the  license  blance  in  their  meaning,  to  the 
of  the  society,  and  for  the  grantees,  surrender,  and  admittance  to  copy- 
when  they  wish  to  transfer  their  in-  hold  premises. 

terest,    to    surrender   the   chambers  (s)   Roe,  d.  Jejfercys,  v.  Hicks,  2 

(upon  a   proper  deed  stamp)  to  the  Wils.  13.  15. 

Treasurer  and  Ancients,  to  the  intent  (a)  Holdfast,  d.  Woijllamt,  v.  Clap- 

that  they  shall  grant  the  said  cham-  ham,  1  T.  R.  600.     Doe,  d.  Berming- 

bers  to  the  transferee  ;  which  sobse-  ton,  v.  Hall,  16  East,  208. 

quent  grant  was  never  in  point  of  fact  (6)  Doe,  d.  Da  Costa,  v.  Wharton, 

made,  bnt  simply  an  mtry  of  admit-  8  T.  R.  2.    B.  N.  P.  109. 


ACTION  OF  EJECTMENT.  67 

The  heir  to  copyhold  lands  may,  however,  maintain  eject- 
ment before  admittance  against  a  stranger  who  obtains  pos- 
session of  the  land  ;(c)  for  his  title  is  complete  against  all 
the  world,  except  the  lord,  immediately  upon  the  death  of 
the  ancestor.(^)  But  if  the  lord  seize  the  land,  upon  the 
ancestor  so  dying,  and  the  heir  bring  an  ejectment  against 
him  for  the  seizure,  it  will  be  necessary  to  shew  that  he 
has  tendered  himself  to  be  admitted  at  the  lord's  court,  or 
that  the  lord  has  dispensed  with  such  tendcr.(e) 

Where  the  devisee  of  a  customary  estate,  which  had 
been  surrendered  to  the  use  of  the  will,  died  before  admit- 
tance, it  was  holden  that  her  devisee,  though  afterwards 
admitted,  could  not  recover  in  ejectment  ;  for  the  admit- 
tance of  the  second  devisee  had  no  relation  to  the  last  legal 
surrender,  and  the  legal  title  remained  in  the  heir  of  the 
last  surrenderor. 


5.  LESSEE  OF  A  COPYHOLDER. 

If  a  copyholder,  without  license,  make  a  lease  for  one 
year,  or  with  license,  make  a  lease  for  many  years,  and 
the  lessee  be  ejected,  he  shall  not  sue  in  the  lord's  court  by 
plaint,  but  shall  have  an  ejectment  at  the  common  law  ; 
because  he  has  not  a  customary  estate  by  copy,  but  a  war- 
rantable estate  by  the  rules  of  common  law.(g) 

6.  WIDOW  FOR  HER  FREE-BENCH. 


(c)   Roe,  d.  Jeffereys,  v.  Hicks,  2  (/)  Doe,  d.  Vtrnon,  v.   Fmum,  7 

U'iU.  28.  East,  8. 

(<0  Rex  v.  Rennett,  2  T.  R.  197.  (g)  Co.  Copy.  s.  6.  Goodwin  r.  Long • 

(e)  Doe,  d.  Burrell,  \.  Bellamy,  2  hunt,  Cro.  Elis.  636. 

Maul,  and  Scl.  87. 


68  OF  THE  TITLE  NECESSARY  IN  THE 

When  there  is  a  custom  in  a  manor,  that  the  widow  shall 
enjoy,  during  her  widowhood,  the  whole,  or  part  of  the 
customary  lands,  wherewith  her  husband  died  seised,  as  of 
free-bench,  she  may,  after  challenging  her  right,  and  pray- 
ing to  be  admitted. (A)  maintain  ejectment  for  them  without 
admittance,  even  against  the  lord  ;  because  it  is  an  excres- 
cence, which,  by  the  custom  and  the  law,  grows  out  of  the 
estate. (?) 

But  if  the  widow's  claim  be  in  the  nature  of  dower,  an 
ejectment  will  not  lie  before  assignment,^')  but  she  must 
levy  a  plaint  in  the  nature  of  a  writ  of  dower,  in  the  lord's 

court. 

7.  GUARDIAN  isr  SOCAGE,(&)  or  TESTAMENTARY  GUAR 
DIAN,  appointed  pursuant  to  the  statute  12  Car.  II.  c.  24.  s. 
8.(0[3] 

But  a  guardian  for  nurture  cannot  maintain  ejectment, 
for  he  cannot  make  leases  for  years,  either  in  his  own  name, 
or  in  the  name  of  the  infant ;  because  he  has  only  the  care 
of  the  person,  and  education  of  the  infant,  and  has  nothing 
to  do  with  the  lands  merely  in  virtue  of  his  office.(w) 


(It)  Doe,  d.  Burred,  v.  Bellamy,  2  (,'.-)  Liu.  sec.  123,  124.  Wade  v. 

Maul,  and  Sel.  87.  Coir,  Ld.  Raym.  130. 

(t)  JunLin  v.  Stone,  Hutt.  IS.  Ho-  (/)  Bedell  v.  Constable,  Vaugh.  177. 

ward  v  Bnrlfetl,  H  ;l>.  1HI.  Doetd.  Parry,  v.  Hodgson,?  Wils.  129. 

(f)  Chapman  v.  Sharpc,  2  Show.  134.  (m)  Ralcli/e't  case,  3  Co.  37. 


[3]  A  guardian  in  sooage  lias  the  custody  of  the  land,  and  is  entitled  to 
ihc  profits  in  the  name  of  the  heirs.  He  has  an  interest  in  the  estate,  may 
le;ise  it,  avow  in  his  own  name,  anil  bring  trespass.  J>yrnt  v.  Van  Hoesen,  5 
Johns.  66.  1  Johns.  163.  7  Johns.  153. 


ACTION  OF  EJECTMENT.  69 

8.  INFANT. (n) 

It  is  difficult  to  discover  any  principle  upon  which  hoth 
infant  and  guardian  can  have  the  power  of  maintaining 
ejectment  for  the  same  lands,  unless,  indeed,  the  power 
of  the  infant  be  limited  to  those  cases,  in  which  no  testa- 
mentary guardian  has  been  appointed,  and  the  infant  is 
either  above  the  age  of  fourteen  years,  or,  being  under 
that  age,  has  had  no  person  to  take  upon  himself  the  office 
of  guardian  in  socage.  No  case,  certainly,  can  be  found, 
in  which  this  distinction  has  been  taken,  but  it  is  not  incon- 
sistent with  the  doctrine  respecting  guardians  in  socage, 
and  accords  most  fully  with  the  established  principles  of 
the  action  of  ejectment. 

9.  ASSIGNEE  OP  A  BANKRUPT.(O) 

As  all  the  bankrupt's  property,  real  and  personal,  is 
rested  in  the  assignees  by  the  statute  13  Eliz.  c.  7.  s.  1,  2. 
it  follows,  of  course,  that  they  must  be  invested  with  all  the 
power  necessary  to  obtain  possession  of  it ;  and  the  gene- 
ral assignment  gives  them  a  title  to  all  the  leaseholds  (ex- 
cept for  lives)  belonging  to  the  bankrupt,  whether  the  same 
be  in  his  possession  at  the  time  of  the  bankruptcy,  or  ac- 
quired by  him  afterwards.  But  with  respect  to  the  free- 
hold lands  of  the  bankrupt,  they  do  not  pass  by  such  assign- 
ment, but  must,  by  the  provisions  of  the  statute  of  Eliza-' 
beth,  be  conveyed  by  the  commissioners  by  deed  indented 
and  enrolled  :  and  until  the  enrolment,  as  well  as  the  bar- 
gain and  sale,  is  completed,  the  assignees  cannot  maintain 

(n)  Rudtton  v.  Votes,  March.  141.        (o)  Beck,  d.  Hawkint,  r.  JTelih,  1 
Zouch  v.   Parsons,  Burr.   1704.   1806.    Wils.  276. 
JYbfre  v.  Wimlham,  Stran.  694.     Mad- 
.'Ion,  d.  Baker,  T.  White,  2  T.R.  169. 


0  OF  THE  TITLE  NECESSARY  IN  THE 

ejectment.  The  bargain  and  sale,  also,  only  affects  the 
lands  to  which  the  bankrupt  is  entitled  at  the  time  of  it? 
execution :  if  he  acquire  any  future  real  estates,  there  must 
be  a  new  bargain  and  sale  to  vest  the  legal  estate  in  the 
assignees,  (p) 

10.  CONUSEE  OP  A  STATUTE-MERCHANT  OR  STAPLE,^) 

11.  TENANT  BY  ELEQIT. 

It  is  laid  down  in  the  case  of  Lowthal  v.  Tomkins,(r)  that 
if  a  tenant  by  elegit  desire  to  obtain  actual  possession  of  the 
lands,  he  must  bring  an  ejectment ;  for  the  sheriff,  under  the 
writ,  delivers  only  the  legal  possession  ;  which  doctrine  is 
recognized  by  Lord  Kenyan,  C.  J.,  in  the  case  of  Taylor  v. 
Cole  ;(s)  but  in  the  case  of  Rogers  v.  Pitcher,(t)  it  is  said  bj 
Gibbs,  C.  J.  "  I  am  aware  that  it  has,  in  several  places, 
been  said,  that  the  tenant  in  elegit  cannot  obtain  possession 
without  an  ejectment,  but  I  have  always  been  of  a  different 
opinion.  There  is  no  case  in  which  a  party  may  maintain 
ejectment,  in  which  he  cannot  enter.  The  ejectment  sup- 
poses that  he  has  entered  ;  and  that  the  lessor  may  do  it  by 
another,  and  not  enter  himself,  is  not  very  intelligible.  I 
would  not,  however,  consider  the  present  case  as  now  de- 
ciding these  points,  which  I  only  throw  out  in  answer  to  the 
argument  that  has  been  used."(<)[4] 

(p)  Ex  partc  Proudfoot,  1  Atk.  262.  (r)  2  Eq.  Ca.  Ab.  380. 

Esp.  N.  P.  431.  (a)  3  T.  R  295. 

(q)  Co.  Litt.  42.  a.   Hammond  v.  (t)  6  Taunt.  202. 
Wood,  Salk.  563. 


[4]  A  purchaser,  under  a  fieri  facias,  has  no  right  to  enter,  unless  the  pro. 

inises  are  vacant,  but  must  resort  to  ejectment.  People  v.  Nelson,  13  Johns.  340. 

A  seizure  of  lands  by  a  sheriff,  under  a  fieri  facias,  does  not  divest  the  title 


ACTION  OF  EJECTMENT.  71 

When   a  tenant   in  possession  claimed   under  a  lease 
granted  prior  to  the  date  of  the  judgment  against  his  lessor, 


of  the  debtor,  until  a  sale  and  deed  delivered, '  and  parchase  money  paid. 
Catliii  v,  Jackson,  8  Johns.  520. 

A  sheriff's  deed  relates  back  to  the  time  of  sale,  though  not  executed  until 
nfterwiixU  Jackson  v  Dicbenson,  16  Johns.  309. 

No  estate  passes  to  the  purchaser  at  sheriff's  sale,  without  a  deed,  or  note  in 
writing,  which  must  specify  the  lands  sold,  and  who  was  the  purchaser.  Jack- 
t»nr  Gatlin,  2  Johns.  248. 

No  property  passes  at  a  sheriff's  sale,  except  what  is  ascertained  and  des- 
cribed at  t!ie  time.  Jackson  v.  Striker,  I  Johns  Cas.  284. 

And  a  subsequent  deed,  founded  on  the  antecedent  execution  and  sale,  will 
not  pass  land,  unless  included  hi  the  description  of  the  premises  conveyed  by 
the  first  deed.  Ibid. 

A  sheriff's  deed,  describing  lands,  as  "  all  the  lands  of  the  defendnnls  in  the 
Ilurdenbrrgh  patent,"  is  void  for  uncertainty.  Jackson  v.  Rosecelt,  13  Johns. 
97.  Jackson  v.  Detancey,  13  Johns.  651. 

A  sale  to  a  bonafide  purchaser,  will  not  be  defeated  by  error  or  irregularity 
in  the  judgment,  or  execution,  or  on  the  ground  that  no  levy  was  made  until 
after  the  return  day.  Jackson  v.  Rosevell,  13  Johns,  97. 

An  incorrect  return  to  tt.ji.fa.,  by  a  sheriff,  does  not  affect  the  title  of  the 
purchaser.  Jackson  v.  Sternbergh,  1  Johns.  Cas.  153. 

Where  a  judgment  was  filed,  May  22d,  and  a  ft.  fa.  directed  the  sheriff  to 
levy  of  the  lands  of  which  defendant  was  seised  on  the  2J  of  May,  it  was 
held  that  this  irregularity  did  not  affect  the  title  of  a  purchaser  under  theji.fu. 
Jackson  v  Davis,  18  Johns.  7 

In  this  case  there  was  a  mistake  by  the  clerk  in  filing  the  record. 
A  deputy  sheriff  may  sell  lands  and  give  deed.     Ibid. 

The  recital  of  the  execution  in  the  sheriff's  deed  is  not  necessary,  and  a 
mistake  in  the  recital  is  immaterial.  Jackson  v.  Pratt,  10  Johas.  381. 

An  execution  issuing  after  a  year  and  a  day,  without  a  revival  of  the  judg- 
ment, is  voidable  only  at  the  instance  of  the  party  against  whom  it  was  i»ucd, 
and  its  regularity  cannot  be  questioned  in  an  action  by  the  purchaser  under 
thefi  fa.  Jackson  v.  Bartletl,  8  Johns.  365.  3  Lev.  403.  3  Caines,  273. 

The  Supreme  Court  of  Pennsylvania  has  decided,  that  a  purchaser  at  she- 
riff's sale,  to  whom  a  deed  has  been  made,  will  hold  the  land,  notwithstanding 
the  judgment  be  §et  aside  for  irregularity.  Lessee  of  Heister  v.  Forlner,  2 
Binney,  40. 

But  it  appears  that  the  decision  was  founded  on  a  statute.     Ibid.  47. 
Where  land  is  sold  under  a  Ji.  fa.,  and  a  deed  is  executed,  a  levy  may  b«- 
presumed.     Jackson  v  Shaffer,  11  Johns.  513. 

Parol  evidence  is  inadmissible  to  show  that  an  execution  has  hten  with- 


72  OP  THE  TITLE  NECESSARY  IN  THE 

it  was  held  that  the  tenant  by  elegit  could  not  recover  in 
ejectment ;  because  the  lessee's  title  being  prior  in  point 
of  time,  the  legal  estate  was  in  him.(u) 

12.  PERSONAL  REPRESENTATIVE.^) 

This  right  is,  of  course,  confined  to  those  lands  which 
the  testator,  or  intestate,  held  for  a  term  of  years  ;  but  it 
is  immaterial,  whether  the  ouster  be  after,  or  before  the 
death  of  the  testator,  or  intestate. (w) 

Personal  representatives  may  recover  in  ejectment  under 
the  statute  29  Car.  II.  c.  3.  s.  12.,  appropriating  estates 

(u)  Doe,  d.  Da  Cos/a,  v.  Wharton,        (w)  Slade't  case,  4  Co.  92,  95  (a) 
8  T.  R.  2.  Doe,  d.  Shore,  v.  Porter,  3  T.R.  13. 

(D)  4Edw.III.  c.  7. 


drawn,  and  the  levy  abandoned,  in  contradiction  to  the  sheriff's  deed.  Jack- 
son v.  Vanderheytltn,  17  Johns.  167.  and  see  Jackson  v.  Cray,  12  Johns.  427. 

In  ejectment  by  a  purchaser  at  sheriff's  sale,  he  must  produce  not  only  the 
Ji.fa.,  and  sheriffs  deed,  but  also  au  exemplified  copy  of  the  judgment.  Jack- 
son v.  Hasbrouck,  12  Johns  213. 

A  person  in  possession  under  a  contract  for  a  purchase,  has  an  interest  in 
the  land  which  may  be  sold  on  execution ;  the  defendant  becomes  quasi  te- 
nant to  the  purchaser,'  and  cannot  object  that  he  has  no  title.  Jackson  v.  Scotl, 
18  Johns.  94. 

A  purchaser  under  sheriff's  sale,  of  all  the  right  of  a  mortgagor  in  posses- 
sion, is  entitled  to  recover,  though  the  mortgagee  has  been  made  co-defen- 
dant. Jackson  v.  Davis,  18  Johns.  7. 

AVherc  plaintiff  in  a  judgment  covenanted  not  to  sell  in  two  years,  the  viola- 
don  of  this  covenant  i>  no  defence  to  an  ejectment  under  a  sheriff's  sale.  Ibid. 

\Vhcn  the  body  i/l  a  (it  U-miHin  is  taken  iu  execution,  the  lien  of  the  judg- 
ment on  the  lands  is  su.:pr:>  !.nil,  ami,  during  his  iinpr.sonment,  n  Ji.fa.  issued 
upon  a  junior  judgment,  will  gain  priority  and  bind  the  lands.  Jackson  v. 
Benedict,  13  Johns.  533. 

By  a  recent  statute  of  .New-York,  passed  April  12th,  1820,  a  purchaser,  at 
sheriff's  sale,  is  not  cni'nli'd  to  a  deed  until  fifteen  mouths  after  the  sale.  The 
statute  will  be  found  in  Appendix,  No.  48. 


ACTION  OP  EJECTMENT.  73 

held  pur  antre  ri'e,  where  there  is  no  special  occupant. 
But  this  statute  does  not  extend  to  copyholds,  and,  there- 
fore, one  who  was  admitted  tenant  upon  a  claim  as  admi- 
nistrator de  bonis  non  to  the  grantee  of  a  copyhold  pur 
autre  vie,  was  not  permitted  to  maintain  ejectment. (x) 

13.  DEVISEE. 

Where  the  devise  is  of  a  freehold  interest,  the  devisee 
may  immediately,  and  without  any  possession,  maintain 
ejectment  for  the  lands  devised  ;(,y)[5]  but  if  it  be  a  legacy 
of  a  term  of  years,  he  must  first  obtain  the  assent  of  the 
executors  to  the  bequest. (z)  When,  however,  such  assent 
is  obtained,  the  legal  estate  vests  absolutely  in  the  legatee, 
and  he  may  maintain  ejectment  against  the  executor,  as 
well  as  against  a  stranger.(a) 

14.  GRANTEE  OF  A  RENT-CHARGE,  having  power  to  en- 
ter upon  the  lands,  if  the  rent  be  in  arrear,  and  hold  them 
until  satisfaction. (6) 


(x)  Zouch,  d.  Forse,  v.  Force,  7        (a)  Doe,  d.  Lord  Say  and  Sele,  Y. 

East,  186.  Guy,  3  East,  120. 

(y)  Co.  Litt.  240,(6).  (6)  Jtmott  v.  Cowley,  1  Saund.  112. 
(z)   Young  v.  Holmes,  Stran.  70. 


[5]  It  is  a  general  rule  of  law,  that  on  the  death  of  a  devisor,  dying  seised, 
the  devisee  is  not  seised  until  an  entry  is  made,  unless  the  tenements  devised 
are  vacant,  and  without  an  occupant.  But,  if  a  stranger  in  possession  ac- 
knowledge the  title  of  the  devisee,  it  is  equivalent  to  an  actual  entry.  Wdlt 
T.  Prince,  4  Mass.  Rep.  64. 

If  a  devisee  for  life  refuse  to  accept  the  estate  devised,  the  remainderman 
thereby  acquires  an  immediate  right  of  entry,  but  he  must  enter  within  twenty 
years,  for  after  that  time  he  cannot  enter  during  the  life  of  a  devisee,  but  he 
may  enter  et  any  time  within  twenty  years  after  tht  death  gf  the  devisee  ftr 
Hfe.  Wtllt  T.  Prime,  9  M«*s.  Rep.  6«8. 

It 


74  OF  THE  T1TLK  NECESSARY  IN    THE 

These  rights  of  entry  are  always  taken  strictly  ;  and. 
whero  a  man  gave  a  leasehold  estate  by  will  to  /?.,  his  ex- 
ecutors, &c.  subject  to  a  rent-charge  to  his  wife  during  her 
widowhood,  with  a  power  to  the  widow  to  enter  for  non- 
payment of  rent,  and  to  enjoy,  &c.  until  the  arrears  were 
satisfied,  and,  in  case  of  the  widow's  marriage,  he  willed 
that  B.  should  pay  the  rent-charge  to  C.,  his  executors,  ad- 
ministrators, and  assigns,  it  was  holden  that  C.'s  executors, 
after  the  widow's  marriage,  and  C.'s  subsequent  death,  had 
no  right  of  entry  for  non-payment  of  the  rent-charge. (c) 

15.  ASSIGNEE  OP  THE  REVERSION,  upon  a  Right  of  Re- 
entry for  Condition  broken.(rf  ) 

By  the  common  law,  no  one  could  take  advantage  of  a 
condition,  or  covenant,  but  the  immediate  grantor,  or  his 
heirs ;  a  principle  consistent  with  the  old  feudal  maxims, 
but  highly  injurious  to  the  rights  of  grantors,  when  the 
practice  of  alienating  estates  became  general,  and  leases 
for  years  a  valuable  possession.  To  remedy  this  evil,  it  is 
enacted  by  the  32  Hen.  VIII.  c.  34.  that  the  grantees,  or 
assignees  of  a  reversion  shall  have  the  same  rights  and  ad- 
vantages, with  respect  to  the  forfeitures  of  estates,  as  the 
heirs  of  individuals,  and  the  successors  of  corporations,  had 
until  that  time  solely  enjoyed ;  and  this  statute  is  made 
most  general  in  its  operation,  hy  particularly  including 
the  grants  from  the  Monarch  of  those  lands,  which  had  then 
recently  become  the  property  of  the  Crown  by  the  dissolu- 
tion of  the  monasteries. 

The  words  of  the  statute  grant  the  privilege  of  re-entry 

(c)  HaueU,  d.  flocfan,  v.   Gmelh-        (<*)  32  Hen.  VIII.  c.  34. 
waite,  Willes,  500. 


ACTION  OF  EJECTMENT.  75 

to  the  assignees  "  for  non-payment  of  rent,  or  for  doing 
waste,  or  for  other  forfeiture  ;"  but  these  latter  words  have 
been  limited  in  their  interpretation  to  "  other  forfeiture  of 
the  same  nature,"  and  extend  to  the  breach  of  such  condi- 
tions only,  as  are  incident  to  the  reversion,  or  for  the 
benefit  of  tho  estate.  Thus,  the  assignee  may  take 
advantage  of  covenants  for  keeping  houses  in  repair,  for 
making  of  fences,  scouring  of  ditches,  preserving  of  woods, 
or  such  like,(e)  but  not  of  collateral  covenants,  as  for  the 
payment  of  a  sum  in  gross,  or  for  the  delivery  of  corn,  or 
wood  ;  and  it  has  upon  this  principle  been  doubted,  whether 
the  assignee  can  re-enter,  if  the  lessee  break  a  covenant 
not  to  assign  without  license. (f) 

The  assignee  of  part  of  the  reversion  in  all  the  lands 
demised,  is  an  assignee  within  this  statute,  but  the  as- 
signee of  the  reversion  in  part  of  the  lands  is  not ;  for  the 
condition  being  entire,  cannot  be  apportioned  by  the  act  of 
the  parties,  but  shall  be  destroyed.  If,  therefore,  A.  be  les- 
see for  years  of  three  acres,  with  condition  of  re-entry, 
and  the  reversion  of  all  the  three  acres  be  granted  to  B.for 
life,  or  for  years,  B.  can  take  advantage  of  the  breach  of  the 
condition ;  but  if  a  reversion  of  any  nature  whatsoever, 
even  in  fee,  of  two  acres  only,  be  granted  to  B.,  he  can- 
not.fe) 

A  cestui  que  use,  and  bargainee  of  the  reversion,  are 
within  this  statute,  because  they  are  assignees  by  act  of 
the  party ;  but  it  does  not  extend  to  persons  coming  in  by 
act  of  the  law,  as  the  lord  by  escheat  ;(/i)  nor  to  an  assignee 


(«)  Co.  Litt.  215,(i).  (£)  Co.  Litt.  215,(a). 

(/)  Lucas  T.  How,  Sir  T.  Ray,  260.        (A)  Co.  Litt.  215,(a). 


76  OF  THE  TITLE  NECESSARY  IN  THE 

by  estoppel  only  ;(i)  nor  to  one  who  is  in  of  another's 
estate ;  and.  therefore,  if  the  reversion,  expectant  on  the 
determination  of  the  term,  be  merged  in  the  reversion  in 
fee,  the  reversion  is  no  longer  within  the  statute. (j) 

This  statute  is  held  not  to  extend  to  gifts  in  tail//:)  but 
copyhold  lands  are  within  its  intention  and  equity. (/) 

1C.  ONE  HAVING  HAD  AN  ADVERSE  POSSESSION  FOR 
TWENTV  YEARS. 

An  adverse  possession  for  twenty  years  is  not  only  an 
available  defence  to  the  party,  whilst  he  continues  in  pos- 
session, but  it  gives  him  (unless  affected  by  some  of  the 
exceptive  provisions  in  the  statute  of  limitations(m)  )  a 
complete  possessory  right  to  the  lands,  and  is  a  sufficient 
title  to  enable  him  to  maintain  an  ejectment,  against  any 
person  who  ousts  him  after  the  expiration  of  the  twenty 
years. (n)[6] 

(f)  Awder  \.  Noke.s,  Moore,  419.  (/)  Glover  v.  Cope,  Carth.  205. 

(j)   Threr  v.   Barton,  Moore,   94.  (m)  Ante,  46. 

Chaworth   v.    Philips,    Moore,    876.  (n)  Slacker  v.  Barney,  Ld.  Raym. 

Webb  v.  Russell,  3  T.  It.  393.  401.  741. 

(*)  Co.  Litt.  215,(a). 


[6]  A  right  of  entry  can  also  be  gained  by  a  prior  possession,  though  short 
of  twenty  years.  The  law,  on  this  subject,  is  thus  laid  down  by  Kent.  C.  J., 
in  the  case  of  Smith  v.  Lorillard,  10  Johns.  356.  "  That  the  first  possession, 
"  when  no  evidence  of  title  appears  on  either  side,  should  be  the  better  evi- 
"  dence  of  right,  seems  to  be  the  just  and  necessary  inference  of  law.  The 
"  ejectment  is  a  possessory  action,  and  possession  is  always  presumption  of' 
"  right,  and  it  stands  good  until  other  and  stronger  evidence  destroys  that  pre- 
"  sumption.  This  presumption  of  right  every  possessor  of  land  has,  in  the 
<(  first  instance,  and  after  a  continued  possession  for  twenty  years,  the  actual 
"  possession  ripens  into  a  right  of  possession,  which  will  toll  an  entry.  Bu 
{:  until  the  possession  of  the  tenant  has  thus  become  matured,  it  would  se»>m 


ACTION  OF  EJECTMENT.  77 

It  seems,  also,  from  a  recent  decision,  that  this  doctrine 
holds  between  the  party  having  had  the  adverse  possession 


"  to  follow,  that  if  the  plaintiff  shows  a  prior  possession,  and  upon  which  the 
"  defendant  entered,  without  its  having  been  formerly  abandoned,  as  derelict, 
"  the  presumption,  which  arose  from  the  tenant's  possession,  is  transferred  to 
'•  i!ir  prior  possession  of  the  plaintiff,  and  the  tenant,  to  repel  that  presump- 
"  tion,  must  show  a  still  prior  possession,  and  so  the  presumption  may  be  re- 
*'  moved  from  one  side  to  the  other,  lolies  quolits,  until  one  party  or  the  other 
"  has  shown  a  possession  that  cannot  be  overreached,  or  puts  an  end  to  the 
w  doctrine  of  presumption,  founded  on  a  mere  possession,  by  showing  a  regu- 
"  lar  title,  or  a  right  of  possession."  In  this  case,  therefore,  it  was  decided* 
that  a  prior  possession,  under  a  claim  of  right,  for  a  less  period  than  twenty 
years,  formed  a  presumption  of  title  sufficient  to  put  the  tenant  on  his  defence  ; 
but  it  must  appear,  that  Midi  prior  possession  had  not  been  voluntarily  relin- 
quished w  ithout  the  animus  reeerlendi,  and  that  the  subsequent  possession  of 
the  defendant  was  acquired  by  a  mere  entry,  without  any  lawful  right.  Ibid. 
and  Truesdale  v.  Jefferiet,  1  Caines'  Rep.  190,  m  notis.  Cro.  Elis.  437.  Bale, 
man  v.  Allen,  2  Saund.  3.  Men  v.  Kivington.  Woods  v.  Lane,  2  Sergeant  &, 
Ra.vle,  53.  Jackson  v.  Hasen,  2  Johns.  22. 

But  where  the  plaintiff  claims  to  recover  on  «he  ground  of  prior  possession, 
that  possession  must  be  clearly  and  unequivocally  proved,  and  the  payment  of 
taxes,  and  execution  of  partition  deeds,  arc  not  sufficient  evidence  of  actual 
possession.  Jackson  v.  Myers,  3  Johns.  388  and  396. 

In  Jackson  v.  Diejfr'endorf,  3  Johns.  270.  it  was  held,  that  an  undisturbed 
possession  for  thirty-eight  years,  under  a  mistaken  location,  is  conclusive  evi- 
dence of  title ;  and  although  the  lessor  had  been  turned  out  of  possession,  by 
a  recovery  by  default  in  ejectment,  still  he  might  recover  on  the  strength  of 
his  previous  possession  ;  that  a  recovery  in  ejectment  does  not  prejudice  the 
right ;  if  the  person  entering  under  it  has  a  freehold,  he  is  in  as  a  freeholder , 
if  he  has  no  title,  he  is  in  as  a  trespasser ;  and  if  he  had  no  right  to  the  pos- 
session, he  takes  only  a  naked  possession,  rftki/ns  v.  Horde,  1  Burr.  114. 

But  this  doctrine,  to  the  extent  as  above  stated,  has  been  controverted  by 
Chancellor  Kent,  in  the  Court  of  Errors  of  New- York,  in  the  case  of  Jarkmn 
v.  Itichtmyer,  16  Johns  326.  "  To  assert,"  says  he,  "  that  a  recovery  in  eject- 
"  ment  was  of  no  manner  of  efficacy,  except  to  change  the  possession  for  a 
"  moment,  and  that  the  losing  party  might  instantly  turn  round,  and  attack 
"  the  victor,  by  the  mere  force  and  presumption  of  the  prior  possession,  is  to 
«'  render  the  action  of  ejectment  perfectly  absurd.  There  never  could  be  a 
*'  recovery  iu  ejectment,  that  did  not  irresistibly  admit,  that  the  lessor  of  the 
"  plaintiff  had  a  better  right  than  the  tenant  to  the  existing  possession.  A  re- 
"  covery  in  ejectment  does  not  injure  the  right,  as  it  may  be  made  to  appear 
"  afterwards,  but  it  certainly  does  change  the  presumption  of  right,  founded 
"  on  a  mere  prior  possession  short  of  twenty  years." 


78  OF  THE  TITLE  NECESSARY  IN  THE 

for  twenty  years,  and  the  legal  owner  of  the  lands,  although 
the  party  having  had  the  possession  afterwards  desert  the 
premises,  and  the  right  owner  peaceably  enter  thereon.(o) 

But,  if  the  possession  of  the  party  be  affected  by  any  of 
the  provisions  of  the  second  section  of  the  statute  of  limi- 
tations ;(p)  or,  if  the  lands  be  the  property  of  the  Crown 
or  the  Church,  the  defendant  may  avail  himself  thereof,  in 
answer  to  the  claim  arising  from  the  adverse  possession, 
without  shewing  any  title  in  himself.  If,  indeed,  the  lands 
are  Crown  lands,  and  the  claimant  has  been  ousted  by  a 
wrong  doer,  after  an  uninterrupted  possession  for  more 
than  twenty  years,  a  grant  of  them  from  the  Crown  will  be 
presumed  in  his  favour,  unless  the  Crown  is  incapable  of 
making  such  grant ;  but  if  such  incapacity  exist,  a  grant 
of  course  cannot  be  presumed ;  and  no  possession  for  less 
than  sixty  years  will  then  be  sufficient  to  enable  him  to 
maintain  an  ejectment.  And,  indeed,  as  the  stat.  9  G.  I. 
c.  16.  only  bars  the  suit  of  the  Crown,  after  a  continuing 
adverse  possession  for  sixty  years,  but  does  not  also  give  a 
title  to  the  adverse  possessor,  it  may  be  doubted  whether 
any  length  of  possession  of  Crown  lands,  not  grantable  by 
the  Crown,  will  be  a  sufficient  title  to  support  an  eject- 
ment.^) 


(o)  Doe,  d.  Burrougk,  v.  Reade,  8        (9)  Goodtille,  d.  Parker,  v.  Baldwin, 
East,  353.  11  East,  488. 

(p)  Ante,  46. 


And  where  a  party  enters  under  a  judgment  in  ejectment,  and  then  con- 
veys, for  a  valuable  consideration,  to  a  third  person,  who  enters  under  his 
deed  ;  such  entry  and  possession  afford  as  high  and  solemn  pritna  facie  evi- 
dence of  right,  as  can  well  be  exhibited,  and  higher  evidence  of  title,  than  a 
previous  naked  occupancy,  though  continued  for  a  number  of  years.  Jackson 
v.  Riditmytr,  in  Sup.  Conrt,  13  Johns.  307. 


ACTION  OF  EJECTMENT  1% 

17.  CORPORATION  AGGREGATE,  OR  SOLE. 

It  was  formerly  doubted,  whether  an  ejectment  could  be 
maintained  by  the  King,  because  an  ejectment  is  for  an 
injury  done  to  the  possession,  and  the  King  cannot  be  put 
out  of  possession.  But  this  reasoning  seems  only  to  apply 
where  the  King  is  made  plaintiff,  and  not  where  he  is  the 
lessor  of  the  plaintiff;  for  it  is  the  lessee,  and  not  the  les- 
sor, who,  by  the  legal  fiction,  is  supposed  to  be  ousted  ;  and 
it  is  held,  that  where  the  possession  is  not  actually  in  the 
King,  but  in  lease  to  another,  there,  if  a  stranger  enter  on 
the  lessee,  he  gains  possession  without  taking  the  rever- 
sion out  of  the  Crown,  and  may  have  his  ejectment  to  re- 
cover the  possession,  if  he  be  afterwards  ousted  ;  because, 
there  is  a  possession  inpais,  and  not  in  the  King,  and  that 
possession  is  not  privileged  by  prerogative.  Hence  it 
follows,  that  the  King*s  lessee  may  likewise  have  an  eject- 
ment to  punish  the  trespasser,  and  to  recover  the  posses- 
sion which  was  taken  from  him.(r) 

In  cases,  however,  included  in  the  stat.  8  Hen.  VI.  16. 
and  18  Hen.  VI.  6.,  which  prohibit  the  granting  to  farm  of 
lands,  seised  into  the  King's  hands  upon  inquest  before 
escheators,  until  such  inquest  shall  be  returned  in  the 
Chancery  or  Exchequer,  and  for  a  month  afterwards, 
if  the  King's  title  in  the  same  be  not  found  of  record,  and 
avoid  all  grants  made  contrary  thereto,  the  King  cannot 
•  maintain  an  ejectment  until  all  the  previous  requisites  are 
complied  with :  for,  even  presuming  the  right  and  posses- 
sion to  be  in  the  Crown  immediately  on  the  death  of  the 
person  last  seised,  the  King  has  no  power  to  grant  the  same 
until  after  office  found,  and,  consequently,  he  must  be  con- 

(r)  Paynt'i  case,  2  Leon.  205.    Let  T.  Abrru,  Cro.  Eliz.  331. 


80  OF  THE  TITLE  NECESSARY  IN  THE 

sideredto  be  himself  in  possession,  and,  therefore,  unable 
to  give  a  title  to  his  lessec.(s) 

18.  RECTOR,  OR  VICAR,  FOR  TITHES. (<) 

The  statute  which  gives  this  remedy  for  tithes,  includes 
«nly  lay  impropriators,  leaving  spiritual  persons  to  pursue 
the  old  remedy  in  the  Ecclesiastical  Court;  though  the  doc- 
trine has  since  been  extended  by  analogy  to  tithes  in  the 
hands  of  the  clergy. (M)  But  an  ejectment  for  tithes  can 
only  be  maintained  against  persons  claiming,  or  pretending 
to  have  title  thereto,  and  not  against  such  persons  as  re- 
fuse or  deny  to  set  them  out,  which  is  called  subtraction  of 
tithes  :(T)  nor  will  it  lie  where  the  tithes  are  not  taken  in 
kind,  but  an  annual  sum  is  paid  in  lieu  thereof.(zp) 

A  parson  cannot  maintain  ejectment  for  glebe  land  after 
sequestration,  (x) 

19.  TRUSTEES. 

In  all  cases,  in  which  the  trusts  are  not  executed  by  the 
statute  of  uses,  the  legal  estate  vests  in  the  trustees,  and, 
of  course,  in  such  cases,  they  may  maintain  ejectment. 

The  principles  upon  which  this  doctrine  is  founded  have 
already  been  discussed  ;(^)  and  it,  therefore,  only  remains 


(*)  Doe,  d.  Hayne,  v.  ReJfcrn,  12  (r)  2  and  3  Edw.  VI  c.  13.  a.  13. 

East,  96.  (w)  Dyer,  116,  (/>). 

(I)  Camtll  v.  Clavering,  Ld.  Raym.  (j)   Doe,  d,   Grundy,  v.  Clarke,  3 

789.  Campl).  447. 

(M)  Co.  Litt.  159.  Baldwin  v.  Wine,  (y)  Ante,  32,  33. 
Gro.  Car.  301. 


ACTION  OF  EJECTMENT.  81 

to  consider  a  few  cases,  in  which  the  trustees  have  been 
held  to  take,  or  not  to  take,  the  legal  estate. 

A  distinction  has  been  made,  between  a  devise  to  a  per- 
son in  trust,  to  pay  over  the  rents  and  profits  to  another,(z) 
and  a  devise  in  trust,  to  permit  some  other  person  to  receive 
the  rents  and  profits ;  the  legal  estate,  in  the  first  case, 
being  held  to  be  vested  in  the  trustee,  and,  in  the  latter,  in 
the  cestui  que  trust ;  though,  to  use  the  words  of  Sir  James 
Mansfield,  C.  J.  in  a  recent  case,  "it  seems  miraculous, 
how  such  a  distinction  became  established  ;  for  good  sense 
requires,  that  in  both  cases,  it  should  be  equally  a  trust,  and 
that  the  estate  should  be  executed  in  the  trustee ; — for 
how  can  a  man  be  said  to  permit  and  suffer,  who  has  no 
estate,  and  no  power  to  hinder  the  cestui  que  trust  from  re- 
ceiving ?"(°)  It  has,  indeed,  in  several  cases,  been  argued, 
that  a  devise  to  trustees  to  receive  the  rents  and  profits, 
and  pay  them  over,  will  not  vest  the  legal  estate  in  the 
trustees,  unless  something  is- required  of  the  trustees,  which 
renders  it  necessary  that  they  should  have  an  interest  in  the 
lands,  as  to  pay  rates  and  taxes,  &c.;  but  this  doctrine  has  not 
yet  been  sanctioned  by  any  decision  of  the  Courts  ;  though, 
certainly,  it  has  happened  in  all  the  latter  cases,  that  the 
trustees  have  been  required  to  do  other  acts,  as  well  as 
pay  the  rents  and  profits. (6) 

In  cases  where  it  is  necessary,  for  the  purposes  of  the 

(z)  Shep.  Touch.  482.  1  Eq.  Cas.        (a)  Doe,  d.  Leicester,  v.  Biggt,  2 

Ab.  383,  384.     Sliapland  v.  SmUh,  Taunt.  109.  113. 
Brown,  Chan.  Cas.  75.    SilrestRr,  d.        (6)  Jones  v.  Ld.  Say  and  Sele,  8 

Law,  v.  Wilson,  2  T.  R.  444.  Jones  v.  Vin.  Ab  262.     Kenrick  v.  Ld    Beau- 

Ld.  Say  and  Sele,  8  Vin.  Ab.  262.  clerk,  3  B.  b  P.  175.     Doe,d.  Uallen, 

Broughton  v.  Langley,  Salk.  679.  3.  v.  Ironmonger,  3  £a«t,  633. 
C.  1  Lut.  814.    Burchett  v.  Durdant, 
2  Vent.  311. 

11 


82  OF  THE  TITLE  NECESSARY  IN  THE 

trust,  that  the  trustees  should  take  the  legal  estate,  it  will 
be  held  to  vest  in  them,  though  the  devise  be,  that  they 
suffer  and  permit  the  cestui  quc  trust  to  receive  the  rents 
and  profits  ;  as  where  the  trust  was,  that  the  trustees  should 
permit  a  feme  covert  to  receive  and  take  the  rents  and  pro- 
fits, during  her  natural  life,  for  her  sole  and  separate  use, 
they  were  held  to  have  the  legal  estate  ;  such  construction 
being  necessary  to  give  legal  effect  to  the  testator's  inten- 
tion, to  secure  the  beneficial  interest  to  the  separate  use  of 
the  feme  covert.(c)  And  where  lands  were  conveyed  to 
trustees,  and  their  heirs,  in  trust,  that  the  trustees  should, 
with  the  consent  of  A,  sell  the  inheritance  in  fee,  and  ap- 
ply the  purchase  money  to  certain  trusts  mentioned  in  the 
deed,  with  a  proviso,  that  the  rents,  issues,  and  profits,  un- 
til the  sale  of  the  inheritance  should  be  received  by  such 
person,  and  for  such  uses,  as  they  would  have  been,  if  the 
deed  had  not  been  made ;  it  was  held,  notwithstanding  the 
proviso,  that  the  estate  was  executed  in  the  trustees  imme- 
diately, even  before  A.  had  given  his  consent  to  the  sale  ; 
and  that  it  was  not  a  mere  power  of  sale  annexed  to  the 
legal  estate  of  the  owuer.(d) 

In  like  manner,  where  the  devise  was  to  A.,  in  trust,  to 
permit  and  suffer  the  testator's  widow  to  have,  hold,  use, 
occupy,  possess,  and  enjoy,  the  full,  free,  and  uninterrupted, 
possession  and  use  of  all  interest  of  moneys  in  the  funds, 
and  rents  and  profits  arising  from  the  testator's  houses,  for 
her  natural  life,  if  she  should  remain  unmarried  ;  and  that 
her  receipts  for  all  rents,  &c.  with  the  approbation  of  any 
one  of  the  trustees,  should  be  good  and  valid,  she  providing 
for,  and  educating  properly,  the  testator's  children,  and 


(c)  Uarton  v.  Ilarton,  7  T.  R.  652.        (d)  Keene,  d.  Lord  Byron,  v.  Dear- 
don,  8  East,  248. 


ACTION  OF  EJECTMENT.  83 

also  paying  certain  annuities  ;  and  in  case  the  widow  should 
marry  again,  then  upon  certain  other  trusts,  it  was  held, 
that  the  use  was  executed  in  the  devisees  in  trust,  and  upon 
this  ground,  that  the  testator,  having  made  the  approbation 
of  the  trustees  necessary  to  the  widow's  receipts,  showed 
that  he  did  not  intend  to  give  her  a  legal  estate  ;  and  Gibbs, 
J.  said,  "  The  rule  has  been  misconceived.  Though  an 
estate  be  devised  to  A.  and  his  heirs,  to  the  use  of  B.  and 
his  heirs,  the  Courts  will  not  hold  it  to  be  an  use  executed, 
unless  it  appears,  by  the  whole  will,  to  be  the  testa- 
tor's intent  that  it  should  be  executed.  The  Courts  will  ra- 
ther say  the  use  is  not  executed,  because  the  approbation 
of  a  trustee  is  made  necessary,  than  that  the  approbation 
of  a  trustee  is  not  necessary,  because  the  use  is  executed. 
The  very  circumstance  which  is  to  discharge  the  tenants, 
is  the  approbation  of  one  of  the  trustees.  '  I  leave  my 
'  wife  to  receive  the  rents,  provided  there  is  always  the 
'  control  of  one  of  the  trustees  upon  her  receipts.' — The 
testator,  therefore,  certainly  meant  that  some  control  should 
be  exercised, — and  what  could  that  control  be,  except  they 
were  to  exercise  it  in  the  character  of  trustees  ?"(e) 

Where  certain  freehold  and  leasehold  premises  were  de- 
vised to  trustees,  their  heirs,  &c.  "  to  permit  and  suffer  the 
testator's  wife  to  receive  and  take  the  rents  and  profits, 
until  his  son  should  attain  the  age  of  twenty-one,"  and  the 
will  contained  also  subsequent  devises  of  other  lands  to 
the  same  trustees,  upon  trusts  clearly  not  executed  by  the 
statute  ;  as,  for  the  payment  of  debts,  raising  portions  for 
younger  children,  &c.  and  immediately  after  the  last  of  the 
different  devises,  a  proviso  followed,  "  that  it  should  be 
lawful  for  the  trustees,  and  the  survivor,  at  any  time  or 

(e)  Gregory  r.  Henderson,  4  Taunt.  772. 


84  OF  THE  TITLE  NECESSARY  IN  THE 

times,  till  all  the  said  lands,  &c.  devised  to  them,  should 
actually  become  vested  in  any  other  person,  or  persons,  by 
virtue  of  the  will,  or  until  the  same,  or  any  part  thereof, 
should  be  absolutely  sold,  as  aforesaid,  to  lease  the  same,  or 
any  part  thereof,"  it  was  holden,  that  the  legal  estate  in  the 
freehold  lands  contained  in  the  first  devise,  vested  in  the 
widow,  notwithstanding  that  leasehold  premises  were  con- 
tained in  the  same  devise,  (the  legal  interest  in  which,  of 
course,  vested  in  the  trustees,)  and  the  subsequent  leasing 
power  given  by  the  will ;  because  the  leasing  power  either 
extended  to  none  of  the  lands  contained  in  the  first  devise, 
or  to  such  of  them  only,  as  were  originally  vested  in  the 
trustees,  (namely,  the  leaseholds,)  "  the  trustees  having  no 
control  over  the  lands  in  the  first  devise  for  any  purposes  of 
the  testator's  will."(f) 

Where  the  devise  was,  that  the  trustee  should  pay  unto, 
or  else,  permit  and  suffer  the  testator's  niece  to  receive  the 
rents,  the  legal  estate  was  held  to  be  in  the  niece,  because 
the  words,  "  to  permit  and  suffer,"  came  last ;  and,  in  a 
will,  the  last  words  prevail,  though  in  a  deed  the  first. (g) 

In  a  case,  where  the  devise  was,  "  I  give  and  bequeath  my 
real  estates,  lands,  fyc.  and  also  my  personal  estate,  &c.  to 
A.  B.,  upon  trust,  to  the  intent,  that  the  said  A.  B.,  his 
heirs,  &c.  shall  first  dispose  of  my  personal  estate,  or  so 
much  thereof  as  shall  be  sufficient  for  that  purpose,  in  pay- 
ment of  my  debts,  &c.  and  as  to  all  my  real  estates,  -where- 
soever and  whatsoever,  subject  to  my  debts,  and  such  charge 
or  charges  as  I  may  now,  or  at  any  time  or  times  hereafter, 

(/)  Knight,  A,  Phillips,  v.  Smith,  livering  the  judgment  of  the  Court  in 

12  East,  466.  this  case,  said,  the  reason  they  assign- 

(g)  Doe,  d.  Leicester,  v.  Biggs,  2  ed  for  their  decision  was  given  for 

Taunt.  109.  Mansfield,  <J.  J.,  in  dc-  want  of  a  better. 


ACTION  OF  EJECTMENT.  85 

think  proper  to  make,  I  give,  devise,  and  bequeath,  the  same  to 
C.  D.,y*or  the  term  of  his  natural  life,  with  remainder  to  E. 
F.,  &c."  it  was  holdcn,  that  the  legal  estate  wag  vested  in 
C.  I )..  because  an  intention,  that  the  trustees  should  pay 
the  debts,  wa3  not  apparent  on  the  face  of  the  will,  and, 
therefore,  there  was  no  reason  for  giving  the  legal  estate  to 
the  trustees. (/*) 

As  the  statute  of  uses  mentions  only  such  persons  as  are 
seised  to  the  use  of  others,  it  has  been  held  not  to  extend 
to  terms  of  years,  or  other  chattel  interests,  whereof  the 
termor  is  not  seised,  but  only  possessed ;  and,  therefore, 
when  only  a  term  of  years  is  created,  whatever  the  nature 
of  the  trusts  may  be,  the  statute  does  not  execute  the  uses, 
but  the  legal  estate  always  vests  in  the  trustees. (i) 

And  when  a  term  of  this  kind  is  created,  it  does  not  cease- 
when  the  trusts  are  satisfied,  unless  there  is  a  proviso  to  that 
effect  in  the  deed  creating  the  term  ;  and,  therefore,  when 
the  deed  contains  no  such  proviso,  the  legal  estate,  however 
ancient  the  term  may  be,  and  notwithstanding  it  may  have 
been  assigned  to  attend  the  inheritance,  will  remain  out- 
standing in  the  trustees,  or  their  representatives,  until  it  be 
surrendered  to  the  party  beneficially  interested,  or  merge 
in  a  larger  estate. (j) 

Copyhold  estates,  also,  are  not  comprehended  within  the 
statute  of  uses;  because,  a  transmutation  of  possession,  by 
the  sole  operation  of  the  statute,  without  the  concurrence 
or  permission  of  the  lord,  would  be  an  infringement  of  the 

(A)  Kenrick  v.  Btauclerk,  3  B.  &  (j)  Vide  Sugden't  Vendors  and  Pur - 
P.  175.  chasers,  3d  Edit.  263.  293. 

(i)  Dillon  v.  Fraine,  Poph.  70.  7«. 
Dyer,  369.    Jcnk.  244. 


86  OF  THE  TITLE  NECESSARY  IN  THE 

lord's  rights,  and  would  tend  to  his  prejudice;  and,  therefore, 
if  a  copyhold  be  surrendered  to^?.,  to  the  use  of  B.,  the  le- 
gal estate  will  not  be  transferred  to  B.,  though  he  would  be 
entitled,  in  equity,  to  the  rents  and  profits,  and  to  call  upon 
.#.,  for  a  surrender  of  the  estate.(A) 

It  seems  to  have  been  held,  in  the  case  of  Roe,  d.  Ebrall, 
v.  Lozoe,(/)  that  a  bona  fide  lease,  made  by  an  equitable 
tenant  in  fail,  will  prevent  the  trustees,  in  whom  the  legal 
estate  is  vested,  from  recovering  in  ejectment  against  the 
lessee  ;  although,  if  the  lease  be  granted  under  suspicious 
circumstances  of  fraud  and  imposition,  the  trustees  will  not 
be  barred.  But,  from  the  more  recent  decisions,  this  prin- 
ciple seems  to  have  been  much  shaken,  and  it  is  now  very 
doubtful  whether,  in  any  case,  a  lease  from  the  cestui  que 
trust  can  be  set  up  against  the  trustee,  without  the  aid  of  a 
court  of  equity.(w) 

The  principles  upon  which  the  case  of  Goodtitle,  d.  Est- 
wick,  v.  Way,  was  decided,  namely,  that  trustees  of  a  term 
to  satisfy  creditors  not  having  notice  of  an  agreement  for  a 
lease  before  the  grant  of  the  term,  may  maintain  an  eject- 
ment against  the  tenant  in  possession  under  the  agreement, 
because,  the  lessors  of  the  plaintiff  were  not  clearly  and 
unequivocally  trustees  for  the  defendant,  have,  likewise, 
been  since  overruled ;  and,  it  now  seems,  that  an  agree- 
ment for  a  lease,  made  before  the  creation  of  a  trust,  will 
in  no  case,  after  a  proper  notice  to  quit,  bar  the  recovery 
«f  the  trustees  in  ejectment.(n) 

To   obviate  the   inconveniences  which  may,  at  times 


(*)  Co.  Cop.  s.  64.  Gilb.  Ten.  182.        (m)  Baker  •v.Mellish,\QVez.Jr.M4. 
(0  1  H.  Blk.  446  (n)  1  T.  R.  735. 


ACTION  OF  EJECTMENT.  87 

arise,  when  an  ejectment  is  brought  by  a  ccstui  que  trust, 
from  the  operation  of  the  salutary  maxim,  that  the  legal 
title  must  prevail,  as  affecting  his  situation  with  his  trus- 
tees, the  jury  will,  in  particular  cases,  be  permitted  to  pre- 
sume, that  a  regular  surrender  has  been  made  by  the  trus- 
tees of  their  estate  ;  thereby  clothing  the  cestui  que  trust 
with  the  legal  title,  and  enabling  him  to  recover  in  the  ac- 
tion. Thus,  a  surrender  will  be  presumed,  if  the  purposes 
of  the  trust-estate  have  been  satisfied  ;(  o)  or  if  the  bene- 
ficial occupation  of  the  estate  by  the  possessor,  induces  a 
supposition,  that  a  conveyance  of  the  legal  estate  has  been 
made  to  the  party  beneficially  interested ;  or  when  the 
trust  is  a  plain  one,  and  a  court  of  equity  would  compel  the 
trustees  to  make  a  conveyance. (p  )  But  this  presumption 
will  not  be  made,  if  the  surrender  be  a  breach  of  the  trust ; 
or  against  the  owner  of  the  inheritance  who  is  interested  in 
upholding  it ;( q  )  or  where  the  title  of  the  party,  for  whom 
the  presumption  is  required,  is  a  doubtful  equity  only,  until 
a  court  of  equity  has  first  declared  in  favour  of  the  equita- 
ble title  ;(r)  nor  can  the  presumption  be  made  by  the  court, 
where  the  merits  of  the  case  would  have  warranted  such 
presumption  at  the  trial,  if  it  appear,  upon  a  special  ver- 
dict, or  special  case  reserved  for  their  opinion,  that  the 
trust-estate,  though  satisfied,  is  still,  in  point  of  fact,  out- 
standing in  the  trustees. (s) 


(o)  Doe,  d.  Hodton,  v.  Staple,  2  T.  (r)  Kttnt,  d.  Lord  Byron,  v.  JJear- 

R.  684.  don,  8  East,  248. 

(p)  Doe,  d.  Syburn,  r.  Sladc,  4  T.  (t)  fioodtitlt,  d.  Jones,  Y.  Jones,  7 

R.  682.  T.  R.  43. 

(q)  Doe,  d.   Graham,  v.  Scott,  11 
Hast,  478. 


88  OF  THE  TITLE  NECESSARY  IN  THE 

20.  JOINT  TENANT,  COPARCENER,  OR  TENANT  IN  COM- 
MON, against  his  companion,  on  an  actual  ouster.(<)[7] 

21.  LUNATIC. 

The  ejectment  must  be  brought  in  the  name  of  the  luna- 
tic ;  for  his  committee  is  but  a  bailiff,  and  has  no  interest 
in  the  land.(u) 


(0  Ante,  53.  tner,  2  Will.  130.  ltd  vide  43  Geo.  III. 

(u)  Drury  v.  Fitch,  Hurt.  16.    Coekt    c.  75. 
v.  Dqrson,  Hob.  215.    Knipe  v.  Pal' 


[7]  A  tenant  in  common  may  maintain  ejectment  against  his  co-tenant, 
though  no  actual  ouster  be  proved.  Per  Spencer,  J.  Shepard  v.  Ryert,  15 
Johns.  501. 

II  one  tenant  in  common  actually  oust  the  other,  he  shall  not  be  admitted 
to  defend,  without  confessing  lease,  entry,  and  ouster  ;  but  if  he  enter,  claiming 
merely  as  tenant  in  common,  he  will  be  allowed  to  enter  into  a  special  con- 
sent rule,  by  which  he  agrees  to  confess  lease  and  entry,  and  also  ouster,  pro- 
vided an  actual  ouster  be  proved  on  the  trial.  Jackson  v.  Dennislon,  4  Johns. 
311.  Johnton  v.  Allen,  12  Mod.  658.  Gates  v.  Brydon,  3  Bur.  1897.  7  Mod.  39. 

The  widow  of  the  ancestor  is  not  tenant  in  common  with  the  heir.  Jackton 
v.  O'Donaghy,  7  Johns.  247. 

Where  real  estate  is  holdcn  by  partners,  they  hold  as  tenants  in  common, 
and  the  rules  relative  to  other  partnership  property  do  not  apply  to  it.  Coles 
v-.  Coles,  15  Johns.  159.  Thornton  v-Dixon,  3  Brown's  Chanc.  Rep.  199.  Ba- 
lurdin  v.  Shore,  9  Ves.  Jun.  500. 

One  joint  tenant  cannot  be  disseised  by  a  stranger  of  any  particular  part 
of  the  land,  unless  all  the  joint  tenants  be  disseised.  Porter  v.  Hill,  9  Mass. 
Rep.  34. 

The  Supreme  Court  of  Massachusetts  have  decided,  that  one  tenant  in  com- 
mon cunnot  convey  any  particular  part  of  the  lands  to  a  stranger,  so  as  to  en- 
able him  to  maintain  partition  for  such  portion,  against  the  other  tenants. 
Barllelt  v.  Harloic,  12  Mass.  Rep.  348. 

One  tenant  in  common  may  oust  his  co-tenant,  and  hold  in  severalty ;  but  a 
silent  possession,  unaccompanied  by  any  act  amounting  to  an  ouster,  or  giving 
notice  to  the  co-tenant,  that  his  possession  is  adverse,  cannot  be  construed  into 
an  adverse  possession.  M -Clung  v.  Ross,  6  YVheaton,  124. 


ACTION  OF  EJECTMENT.  89 

22.  And  to  these,  we  may  add,  that  an  award,  under  a 
submission  to  arbitration,  will  give  a  good  title  on  which 
to  maintain  this  action;  for,  although  the  award  cannot 
have  the  operation  of  conveying  the  land,  there  is  no  rea- 
son why  the  defendant  may  not  conclude  himself,  by  his 
own  agreement,  from  disputing  the  title  of  the  lessor  of  the 
plaintiffin  ejectment.  The  parties  consent,  that  the  award 
of  an  arbitrator,  chosen  by  themselves,  shall  be  conclusive, 
as  to  the  right  of  the  land  in  controversy  between  them ; 
and  this  is  sufficient  to  bind  them  in  the  action  of  eject- 
ment.^)^]— [9] 

(t>)  Doe,  d.  Morris,  v.  Rower,  3  East,  16. 


[8J  Where  an  award  settles  the  boundaries  of  land,  it  is  sufficient  to  enable 
the  party  to  whom  the  land  is  awarded,  to  maintain  ejectment.  Sellick  v. 
ddamt,  16  Johns.  197.  Jackson  v.  Dt  Long,  9  Johns.  43. 

An  award  of  lands  to  one  of  the  parties,  will  estop  the  other  from  setting  up 
title  to  the  land  awarded.  Shepard  v.  Ryers,  16  Johns.  497. 

The  Supreme  Court  of  Massachusetts  have,  however,  decided,  that  when 
the  owners  of  adjoining  lands  agree,  in  writing-,  to  have  certain  lines  run  by  a 
•urveyor,  whose  doings  should  be  decisive,'  the  agreement  and  survey  did  not 
operate  to  pass  the  land,  and  did  not  preclude  the  party  from  showing,  that 
his  land  extended  beyond  the  line  established  by  the  surveyor.  Whitnty  r. 
HoliMt,  16  Mass.  Rep.  152. 

[9]  To  these  it  may  be  added,  that  a  fine,  and  five  yean  non-claim,  are  con- 
clusive evidence  of  title  ;  and  a  fine  alone  is  sufficient  to  support  an  ejectment 
against  a  person  entering  during  the  five  years,  without  title.  Jackum  r.  Snulh, 
13  Johns.  426. 


12 


90 


CHAPTER   IV. 

OP  THE  CASES  WHICH  REQUIRE  AN  ACTUAL  ENTRY  UPON 
THE  LAND  BEFORE  EJECTMENT  BROUGHT. 


WHEN  an  entry  is  required,  only  to  complete  the  claim- 
ant's title,  as  when  a  power  is  reserved  to  him  to  re-enter 
for  the  breach  of  any  condition  of  a  lease,  or  grant,  the  com- 
mon consent  rule  will  be  sufficient  to  enable  him  to  main- 
tain ejectment,  without  any  actual  entry  upon  the  lands  in 
dispute  ;  but  when  the  entry  is  requisite  to  rebut  the  defen- 
dant's title,  an  actual  entry  upon  them  must  be  made,  before 
the  action  can  be  supported.  (w)  Such,  at  least,  is  the  prin- 
ciple laid  down  by  Lord  Mansfield  ;  but,  the  application  of 
the  latter  part  of  it  is  now  limited  to  cases  where  fines  with 
proclamations  have  been  levied  ;  for  in  all  other  cases  the 
common  consent  rule  to  confess  entry  is  sufficient  ;  and  it 
may  be  doubted,  whether  the  necessity  of  an  actual  entry, 
even  when  a  fine  with  proclamations  has  been  levied,  does 
not  arise  from  the  construction  given  to  the  words  of  the 
statute  of  fines,  (x)  rather  than  from  the  general  principle 
above  mentioned.  By  that  statute,  it  is  enacted,  that, 
when  a  fine  is  levied  with  proclamations,  persons  wishing 
to  avoid  such  fine,  must  pursue  their  title,  claim,  or  interest, 
by  way  of  action,  or  lawful  entry,  within  five  years  next 
after  their  title,  claim,  or  interest,  shall  accrue  ;  or  (provid- 
ed at  such  time  they  be  under  any  legal  disability)  within 

(u>)  Per  Lord  MarafieM,  C.  J.,  in        (x)  4  Hen.  VII.  c.  24. 
Goodrifrht,  d.  Hare,  r.  Caltr,  Doug. 
477—84. 


OF  ACTUAL  ENTRY.  91 

five  years  next,  after  such  disability  shall  cease  ;  and,  as  the 
action  of  ejectment  was  not  used,  at  the  time  of  the  enact- 
ment of  this  statute,  for  the  trial  of  titles,  the  word  action'm 
it  has  been  interpreted  to  extend  to  real  actions  only,  and 
not  to  comprehend  the  remedy  by  ejectment.  When,  there- 
fore, a  forfeiture  is  committed  by  the  levying  of  a  fine  with 
proclamations,  and  the  reversioner  does  not  resort  to  a  real 
action,  it  becomes  necessary  for  him,  if  he  mean  to  take  ad- 
vantage of  the  forfeiture,  to  have  recourse  to  the  other 
method  pointed  out  by  the  statute,  that  is  to  say,  to  make 
a  lawful  entry  upon  the  land  ;  and,  having  made  the  lawful 
tntry,  and  thereby  avoided  the  fine,  an  ejectment  will 
afterwards  lie  for  the  recovery  of  the  forfeited  lands,  in  the 
same  manner  as  if  the  tenai.t  had  forfeited  his  estate,  by  the 
breach  of  any  condition  annexed  to  his  grant. 

This  seems  to  be  the  true  principle  upon  which  an  ac- 
tual entry  is  deemed  necessary,  when  a  fine  with  procla- 
mations has  been  levied  ;  and  it  is  sanctioned  by  all  the 
modern  decisions,  although  a  different  doctrine  was  for- 
merly maintained.  In  1703,  it  was  declared  by  all  the 
judges,  (Price,  B.  excepted,)  that,  in  case  of  a  fine,  there 
must  be  an  actual  entry  ;  and  the  two  first  decisions  which 
are  extant  after  this  declaration,  interpret  the  maxim  to 
extend  to  fines  generally,  whether  with  or  without  procla- 
mations ;  and  consider  the  necessity  of  an  entry,  to  arise 
from  the  puissance  of  a  fine  at  common  law,  and  not  from 
the  provisions  of  the  statute  of  fines. 


(y)  Berrington  v.  Parkhurtt,  And.  East,  489.  Tapner,  d.  Peckham,  v. 
126  S.  C.  Stran.  1086.  S.  C.  13  Mtrlolt,  Willes,  177. 

[1]  It  is  settled,  by  repeated  decisions  for  near  a  century,  that  the  confes- 
sion of  lease,  entry,  and  ouster,  is  sufficient  to  maintain  an  ejectment  for  a 
condition  broken  ;  and  that  an  actual  entry  is  not  necessary  to  be  shown,  in 
any  case,  except  to  avoid  a  fine.  Jackson  v.  Crytlcr,  1  Johns.  CM.  126. 


92  OF  ACTUAL  ENTRY. 

It  is  somewhat  singular,  that  neither  of  these  cases  is 
noticed  in  any  of  the  subsequent  decisions  by  which  they 
have  been  overruled  ;(z)  although,  from  the  superiority  of 
the  modern  doctrine,  the  omission  can  by  no  means  be  re- 
gretted. It  is  (to  use  Lord  Mansfield*  s  words)  "  absurd  to 
entangle  men's  rights  in  nets  of  form  without  meaning ;  and 
an  ejectment  being  a  mere  creature  of  the  Court,  framed 
for  the  purpose  of  bringing  the  right  to  an  examination,  an 
actual  entry  can  be  of  no  service. "(a) 

It  was  in  one  case  held  by  the  Court  of  King's  Bench, 
at  a  trial  at  bar  in  ejectment,  that  where  one  had  made  an 
actual  entry  into  the  lands  before  any  fine  was  levied,  and 
brought  his  ejectment  after,  and  laid  the  demise  in  the  de- 
claration before  the  time  of  levying  the  fine,  such  entry 
was  sufficient  to  entitle  him  to  a  verdict.  It  is  difficult  to 
discover  the  principle  of  this  decision  ;  for  it  is  evident, 
by  the  words  of  the  statute,  that  an  entry  before  the  levy- 
ing of  a  fine,  cannot  avoid  a  fine  afterwards  levied  ;  and,  if 
it  be  said,  that  the  entry  and  demise,  being  before  the  levy- 
ing of  the  fine  enabled  the  lessor  to  shew  a  good  title  at 
the  time  of  the  demise,  and  so  prevented  the  defendant 
from  giving  the  subsequent  fine  in  evidence,  there  seems 
no  reason  why  the  same  effect  should  not  be  produced, 
by  simply  laying  the  demise  before  the  time  of  levying  the 
fine,  without  making  an  actual  entry,  since  it  is  clear,  that 
an  actual  entry  is  never  necessary  but  to  avoid  a  fine. (4) 

(*)  Oates,  d.    Wig  fall,  v.  Brydon,  (a)  Goodright,  d.   flare,  v.   Color, 

Burr.    1895.     Jenkins,  d.   Harris,   v.  Doug.  477.  85. 

Pritchard,  2  Wils.  45.     Doe,  d.  Due-  (b\  Musgrave,  d.  Hilton,  v.  Shelly, 

Jcett,  v.  Wattt,  9  East,  17.  1  Wils.  214. 


Reversions  may  maintain  ejectment  against  tenant  for  years,  who  holds 
•ver  without  proving  an  actual  ouster.    Barber  v.  Root,  10  Mass.  Rep.  260. 


OP  ACTUAL  ENTRY.  93 

A  fine  cannot  be  avoided  by  entry,  except  when  the  per- 
son who  seeks  to  avoid  it  has  a  right  to  enter;  for,  if  the 
right,  of  entry  be  taken  away  by  the  fine,  and  a  right  of 
action  only  remain,  as  if  the  fine  operate  as  a  discontinu- 
ance of  the  estate,  a  real  action  must  be  resorted  to. 
Such  is  the  case  when  a  fine  is  levied  by  a  tenant  in  tail.(c) 
But,  if  a  tenant  in  tail,  first  alienate  his  estate  by  modes  of 
conveyance,  which  transfer  only  the  possession,  and  not 
the  right  of  possession,  as  by  bargain  and  sale,  lease  and 
release,  covenant  to  stand  seised,  &c.  and  the  grantee  be 
seised  by  virtue  of  such  conveyance,  a  fine  levied  after- 
wards by  the  tenant  in  tail,  will  not  operate  as  a  discon- 
tinuance of  the  estate-tail ;  but  the  remainder-man,  or  rever- 
sioncr,  after  the  death  of  the  tenant  in  tail,  without  issue, 
may  enter,  provided  his  entry  be  made  within  five  years 
next  after  his  title  accrues.(J) 

A  fine  levied  by  a  tenant  for  life,  operates  as  a  forfeiture 
of  his  estate,  and  divests  also  the  estate  of  the  remainder- 
man or  reversioner,  leaving  in  him  only  a  right  of  entry. 
An  actual  entry  must,  therefore,  be  made  upon  the  lands, 
in  order  to-  avoid  such  fine,  before  ejectment  can  be  main- 
tained ;(e)  and  this  entry  may  be  made,  and  the  ejectment 
brought,  by  the  party  next  in  remainder,  either  within  five 
years  next  after  the  time  when  the  proclamations  upon  the 
fine  are  completed,  by  reason  of  the  forfeiture,  or  within 
five  years  after  the  natural  determination  of  the  preceding 
estate.  When,  also,  there  are  several  remainder-men  in 
succession,  the  laches  of  one  remainder-man  will  not  pre- 
judice the  others,  but  each  remainder-man  will  be  entitled 
to  his  right  of  entry  within  five  years  after  his  title  accrues, 

(c)  Doe,  d.  Odiarne,  v.  Whitehcad,  (e)  Doe,  d.  Compere,  r.  Hicks,  7  T. 
Burr.  704.  R.  433. 

(rf)  Seymour's  caie,  10  Co.  96.  Ante, 
34,  35. 


94  OP  ACTUAL  ENTRY. 

notwithstanding  the  laches  of  those  who  have  preceded 
him.  But  this  right  can  only  be  executed  by  the  original 
remainder-men  and  reversioners,  and  will  not  pass  by 
assignment  or  devise.(/) 

When  a  lessee  for  years  makes  a  feoflment,  and  then 
levies  a  fine  to  his  feoffee,  an  actual  entry  is  necessary  to 
avoid  the  fine,(g)  and  the  reversioner  may  then  likewise 
enter  within  five  years  next  after  levying  the  fine,  or  within 
five  years  next  after  the  expiration  of  the  term.(A) 

In  a  late  case,  where  a  lessee  for  years  levied  a  fine 
with  proclamations,  after  which,  his  lessor,  without  enter- 
ing upon  the  land,  conveyed  his  reversion  to  a  third  person, 
who  brought  an  ejectment  for  the  forfeiture,  Lord  Ellen- 
borough,  C.  J.,  in  delivering  the  judgment  of  the  Court, 
said,  that  "  they  could  not  find  any  case  which  established 
a  difference  between  tenant  for  life,  and  tenant  for  years, 
as  to  the  necessity  of  an  entry  to  avoid  their  estates,  in  case 
of  a  forfeiture  incurred  by  the  levying  of  a  fine,  but  an  en- 
try was  necessary  against  both."(/)  From  the  report  of 
this  case,  it  does  not  clearly  appear,  whether,  by  the  en- 
try here  spoken  of,  an  actual  entry  is  intended,  or,  whe- 
ther the  Court  only  meant  to  say,  that  when  a  tenant  for 
years  levies  a  fine,  his  estate  does  not  ipso  facto  cease  and 
determine,  but  continues  until  re-entry,  that  is  to  say,  until 
the  reversioner  brings  an  ejectment  for  the  forfeiture. 

The  latter,  seems  the  more  reasonable  interpretation, 

(/)  Goodright,  d.  Fowler,  v.  For-  S.  C.  1  Vent  241.   S.  C.  Sir  T.  Raym. 

rester,  8  East,  652.  219.     Vide  cont.  per  Catline,  J.,  Slo- 

(g)  Hunt  v.  Bourne,  Salk.  339  and  well  v.  Z-ur/i,  Plow.  374,(o).     Pod- 

!he  cases  there  cited.  Pomfret  v.  Wind-  ger's  case,  9  Co.  106,  (6). 

JOT,  2  Ves.  472.  481.  (f)  Fenn,  d.  Mathtws,  T.  Smart,  12 

(h)  Whaley  r.  Tankard,  2  Lev.  52.  East,  444. 


OP  ACTUAL  ENTRY.  95 

as  it  is  difficult  to  discover  upon  that  principle  an  actual 
entry  is  more  necessary,  when  a  forfeiture  is  incurred  by  a 
tenant  for  years  by  levying  a  fine,  than  when  the  forfeiture 
arises  from  the  breach  of  any  other  condition.  A  fine  by  a 
tenant  for  years,  is  not  within  the  provisions  of  the  statute 
of  fines.  It  does  not,  like  the  fine  of  a  tenant  for  life,  di- 
vest the  estate  of  the  reversioner :  non-claim  does  not  give 
effect  to  it :  and,  in  fact,  from  the  want  of  a  freehold  in- 
terest in  the  parties,  the  fine  is  wholly  inoperative. (j) 
But  the  necessity  of  an  actual  entry,  when  a  fine  is  levied, 
arises  only  from  the  operation  of  the  statute  of  fines,  and  is 
merely  for  the  purpose  of  revesting  the  estate  which  the 
fine  has  divested,  and,  therefore,  must  be  altogether  use- 
less in  a  case  not  within  the  statute,  and  where  the  estate 
of  the  reversioner  is  not  affected  by  the  fine.  In  confirma- 
tion also  of  this  interpretation,  it  is  laid  down  by  Lord 
Kenyan,  C.  J.,  in  Peaceable,  d.  Hornblower,  v.  Read,(k]  that 
if  a  tenant  for  years  levies  a  fine,  no  entry  of  the  landlord 
is  necessary,  in  order  to  enable  him  to  maintain  ejectment 
at  the  end  of  the  term ;  and,  in  a  recent  case,  where  a 
lessee,  for  the  life  of  his  lessor,  continued  in  possession 
after  his  lessor's  death,  until  his  own  death,  without  pay- 
ment of  rent,  after  which  his  son  took  possession,  and  hav- 
ing kept  possession  for  two  years,  without  payment  of  rent, 
levied  a  fine  with  proclamations,  the  Court  held,  that  no 
entry  was  necessary  to  avoid  this  fine,  and  Lord  Ellen- 
borough,  C.  J.,  said  "  it  surely  needs  not  much  labour  to 
discover,  that  if  the  fine  operates  nothing,  it  cannot  require 
an  entry  to  avoid  it."(/) 


(j)  Shep.  Touch.  14.  and  the  etut*        (k)  1  East,  668—74. 
aUed  in  Hunt  v.  Bowrnt,  1  Salk.  339.        (0  Doe,  d.  Bum//,  r.  Perkint,  3 
941,  note  b.  M.&S.  271.  et  vide  1  Saund.  319,  (c) 


96  OF  ACTUAL  ENTRY. 

As  the  possession  of  one  joint  tenant,  parcener,  or  tenant 
in  common,  is,  in  contemplation  of  law,  the  possession  of 
his  companion  also,(m)  a  line  levied  by  a  joint  tenant,  par- 
cener, or  tenant  in  common,  previously  to  an  actual  ouster 
of  his  companion,  will  not  operate  to  divest  his  companion's 
estate ;  and  if  the  party  so  levying  the  fine  afterwards 
actually  oust  his  companion,  an  ejectment  may  be  main- 
tained against  him,  without  an  actual  entry  into  the  lands.(n) 
In  like  manner,  if  one  of  two  tenants  in  common  of  a  re- 
version, levy  a  fine  of  the  whole,  an  actual  entry  is  not 
necessary  by  the  other  tenant  to  avoid  it.(o) 

If  all  the  proclamations  have  not  been  completed,  the 
fine  will  only  enure  as  a  fine  at  common  law,  and  no  entry 
will  be  necessary  to  avoid  \t.(p)  When,  also,  a  tenant  for 
life  does  not  levy,  but  merely  accepts  a  fine,  although 
such  acceptance  will  create  a  forfeiture  of  his  estate,^) 
yet,  as  the  person  who  levied  the  fine  had  not  any  estate 
or  interest  in  the  lands,  at  the  time  of  levying  the  fine,  it 
neither  alters  the  estate  of  the  tenant  for  life,  nor  divests 
the  remainder  or  reversion,  and,  consequently,  no  entry  if 
necessary  to  avoid  it.(r) 

The  entry  must  be  made  by  the  party  who  claims  the 
land,  or  by  some  one  appointed  for  him  ;(s)  although  if  (he 
entry  be  made  by  a  stranger,  in  the  name  of  the  person 


(m)  Ford  v.  Gray,  Salk.  285.     S.  East,  17.  serf  ride   Tapner,  d.  Peek- 

C.  6  Mod.  44.     Smalet  v.  Dale,  Hob.  ham,  v.  Aferloti,  Willis,  177. 

120.  (9)  Co  Litt.  252,(a). 

(n)    Peaceable,  d.  'Hornblower,   v.  (r)  Podgtr't  cast,   9  Co.  106,  (6). 

ttead,  1  East,  568.  Green  v.  Proude,  1  Mod.  117.    S.  C. 

(o)  Roe,  d.  Tnacott,  v.  Elliot,  1  S.  1  Vent.  267,  8. 

k  B.  85.  (3)  Co.  Litt.  258,  (a). 

(p )   Doe,  d.  Duckett,  v.   Wattt,  9 


•^  OF  ACTUAL  ENTRY.  97 

who  has  the  right,  without  any  previous  command  from  him, 
and  he  afterwards  assent  to  the  entry,  within  five  years 
after  the  fine  is  levied,  such  entry  will  be  sufficient.(0 
If,  however,  the  assent  be  not  given  within  the  five  years, 
any  subsequent  assent  will  not  avail ;  for  the  statute  of 
fines,  being  made  for  the  purposes  of  repose  and  tranquil- 
lity, is  always  taken  strictly.(w) 

But  a  guardian  by  nurture,  or  in  socage,  may  enter  in 
the  name  of  his  ward,  without  any  command  or  assent, 
and  such  entry  shall  save  his  right.  So,  also,  the  remain- 
der-man, or  reversioner,  or  lord  of  a  copyhold,  may  enter 
in  the  name  of  the  tenant  for  life,  years,  or  copyholder; 
or  these  particular  tenants  in  the  name  of  the  reversioner, 
or  remainder-man  ;  or  the  lord,  without  any  command  or 
assent,  on  account  of  the  privity  between  these  persons. (v) 
So,  likewise,  an  entry  by  a  cestui  que  tmst  will  be 
sufficient,  (zo) 

When  one  joint  tenant,  tenant  in  common,  or  parcener, 
enters  generally  into  lands,  it  will  be  sufficient  to  avoid  the 
effect  of  a  fine  as  to  his  companion,  from  the  principle  be- 
fore mentioned,  that  the  possession  of  one  joint  tenant, 
tenant  in  common,  or  parcener,  is  the  possession  of  his 
companion  also.(x) 

With  respect  to  the  mode  of  making  the  entry,  it  must 


(0  Co.  Litt.  245,  (a).     Fiichtt  v.  (r)  Podger't  case,  9  Co.  106,  (a). 

Mamt,  Stran.  1128.  (IT)  Gree  v.  Rolle,  1  Ld.  Raym.716. 

(u)  Pollard  v.  Luttrell,  Pop.  108.  (x)  Brook.  Ab.     Entre  Can.  37.    1 

S.  C.   Moore,  450.      Dudley's  case,  Roll.  Abr.  74O.    Doe,  d.  (hll,r.  Ptar- 

Moore,  457.     Podger's  case,   9  Co.  ton,  6  Kast,  173. 
106,  (a).  Audlty  v.  Pollard,  Cro.  Eliz. 
561. 

13 


98  OF  ACTUAL  ENTRY. 

be  upon  the  lands  comprised  in  the  tine  ;  for  an  entry  into 
other  lands,  claiming  those  comprised  in  the  fine,  will  not 
be  sufficiently  )  Thus,  where  a  fine  having  been  levied, 
the  lessor  of  the  plaintiff  proved  that,  at  the  gate  of  the 
house  in  question,  he  said  to  the  tenant,  that  he  was  heir 
to  the  house  and  land,  and  forbad  him  to  pay  more  rent  to 
the  defendant,  but  did  not  enter  into  the  house  when  he 
made  the  demand,  it  was  agreed  that  the  claim  at  the  gate 
was  not  sufficient;  but,  as  it  appeared,  that  there  was  a 
court  before  the  house  which  belonged  to  it,  and  that, 
though  the  claim  was  at  the  gate,  yet  that  it  was  on  the 
larld,  and  not  in  the  street,  the  claim  was  holden  good.(z) 
But  if  a  person  be  prevented  by  force,  or  violence, 
from  entering  on  the  lands  whereof  a  fine  has  been  levied, 
he  must  then  make  his  claim  as  near  the  land  as  he  can  ; 
which,  in  that  case,  will  be  as  effectual,  as  if  he  had  made 
an  actual  entry.(o) 

When  all  the  lands  lie  in  one  county,  the  party  may  en- 
ter into  any  part  of  them,  making  a  declaration  in  the  name 
of  the  whole  ;  but  if  the  lands  lie  in  different  counties,  there 
must  be  separate  entries  for  the  several  counties.(6)[2] 

• 

(y)  Focus  v.  Salisbury,  Hard.  400.          (a)  Liu.  s.  419.  Co.  Litt.  253,  (6). 
(a)  Anon.  Skin.  412.  (6)  LitU  s.  417. 


[2]  An  entry  into  part  of  a  tract  of  land,  claiming  the  whole,  is  equivalent 
to  an  eptry  into  the  whole.  Jackson  v.  Lunn,  3  Johns.  Cas.  1 15. 

There  must  be  an  actual  entry  to  avoid  a  fine,  and  the  demise  must  be  laid 
after  the  entry.  Berrington  v.  Parkhursl,  2  Strange,  1086. 

An  entry  to  avoid  the  statute  of  limitations,  must  be  an  entry  for  the  pur- 
pose of  taking  possession.  Jackson  v.  SeJioonmaJcer,  4  Johns.  390.  1  Burr.  120. 
1  l.utw.  779.  2  Salk.  422.  7  East,  311. 

A  person  having  title  may  enter  peaceably,  without  judgment  or  suit,  and 
having  so  entered,  his  possession  enures  according  to  his  title.  Jackson  v.  Hun- 
land,  13  Johns.  235. 


'  OF  ACTUAL  ENTRY.  99 

The  entry  must  also  be  made  ammo  clamandi,  with  an 
intention  of  claiming  the  freehold  against  the  fine  ;(c) 
and,  therefore,  when,  upon  a  special  verdict  in  ejectment, 
it  was  found  that  a  fine  had  been  levied  of  the  premises, 
and  that  the  lessor  of  the  plaintiff  entered  upon  the  pre- 
mises, with  intent  to  make  the  demise  in  the  declaration 
mentioned,  but  not  for  the  purpose  of  avoiding  the  fine, 
it  was  held  that  such  entry  was  not  sufficient. (d) 

By  the  statute  4  Anne,  c.  16.  s.  16.  it  is  enacted,  that 
no  claim  or  entry,  to  be  made  upon  any  lands,  &c.  shall 
be  of  any  force  to  avoid  a  fine  levied  with  proclamations 
according  to  the  statute,  or  a  sufficient  entry  within  the  sta- 
tute of  limitations ;  unless,  upon  such  entry  or  claim,  an 
action  be  commenced  within  one  year  after  the  making  of 
such  entry  or  claim,  and  prosecuted  with  effect ;  and,  there- 
fore, if  the  claimant  fail  in  the  ejectment  brought  in  conse- 
quence of  the  entry,  and  have  not  time  to  commence  a 
second  ejectment  within  twelve  months  after  the  making 
of  the  entry,  a  second  entry  must  be  made.  But  if  the 
actual  entry  be  once  made,  and  the  claimant  proceed  to 
execution,  in  an  ejectment  brought  thereon,  it  seems  clear 
that  the  fine  is  totally  avoided,  and  that  no  second  entry 
will  be  necessary,  if  he  be  afterwards  turned  out  ofposses- 


(c)  Clarkev.  Phillip*,  1  Vent.  42.      hunt,  And.  125.     S.  C.  Stran.  1086. 

(d)  Berringlon,d  Dormer,  v.  Park-     S.  C.  VVilJes,  327.  S.  C.  13  East,  489. 


The  grantor  of  an  estate  upon  condition,  must  enter  for  condition  broken, 
to  revest  the  estate  in  himself;  but  when  he  is  in  possession  already,  the  estate 
shall  revest  in  him  instantly  on  breach  of  the  condition.  Lincoln  and  Kenne- 
beck  Bank  v.  Drummond,  6  Mass.  Rep.  321. 

On  the  death  of  a  devisor  dying  seised,  the  devisee  is  not  seised  until  an 
entry  is  made  ;  but  where  the  lands  are  vacant,  ne  entry  is  accessary. 
T.  Prince,  4  Mass.  Rep.  64. 


100  OF  ACTUAL  ENTRY. 

sion,  by  the  wrong-doer  who  levied  the  fine ;  for  the  fine 
being  once  avoided,  shall  be  void  for  ever.(e) 

It  has  been  questioned,  whether  an  actual  entry  is  not 
necessary  to  prevent  the  operation  of  the  statute  of  limita- 
tions ;(y*)  but  it  seems  quite  clear,  from  the  whole  current 
of  authorities,  that  no  entry  is  necessary,  if  the  action  be 
commenced  within  the  twenty  years.  If,  however,  the 
twenty  years  be  near  expiring  before  an  ejectment  is 
brought,  it  will  be  prudent  to  make  an  actual  entry ;  for  it 
seems,  that  if  an  actual  entry  be  made  before  the  expira- 
tion of  the  twenty  years,  an  ejectment  may  be  brought 
at  any  time  within  twelve  months  after  the  entry,  al- 
though the  twenty  years  should  in  the  mean  while  have 
expired ;  and,  also,  that  if  the  lessor  of  the  plaintiff  fail 
in  his  first  ejectment,  whether  brought  within  the  twen- 
ty years  or  after,  he  may,  from  the  provisions  of  the  sta- 
tute of  Anne  before  mentioned,  bring  a  second,  provided 
this  second  ejectment  be  likewise  brought  within  a  year 
after  the  entry  is  made  ;  whereas,  if  an  ejectment  be  brought 
without  an  actual  entry,  and  the  claimant  fail  in  it,  and, 
before  another  ejectment  can  be  brought,  the  twenty  years 
expire,  he  will  be  entirely  barred  of  this  remedy ;  because 
the  entry  which  is  confessed  by  the  defendant  in  the  first 
ejectment  being  only  a  fictitious  entry,  and  the  second 
ejectment  being  a  new  action,  and  not  a  continuance  of  the 
first,  it  amounts  to  the  same  thing  as  if  no  entry  had  been 
confessed,  or  no  ejectment  had  been  brought  until  after  the 
expiration  of  the  twenty  years. 


(e)  Stowell  v.  Zouch,  Plowd.  363.        (/)  Goodright,  d.  Hare,  v.  Cater. 
366.  Doug.  477.  486,  (n.  1.) 


101 


CHAPTER  V. 


OF  THE  ACTION  OF  EJECTMENT  AS  BETWEEN  LANDLORD 
AND  TENANT. 


THE  modern  action  of  ejectment  is  not  confined  in  its 
beneficial  effects  solely  to  the  trial  of  disputed  titles.  It  is 
also  the  common  remedy  for  landlords,  on  the  determina- 
tion of  tenancies,  to  recover  the  possession  of  their  lands 
from  refractory  tenants  ;  and  it,  therefore,  properly  belongs 
to  this  treatise,  to  inquire  into  the  several  relations  of  land- 
lord and  tenant,  with  regard  to  this  remedy ;  and  to  point 
out  the  different  ways  by  which  the  tenant's  title  to  the 
possession  may  be  determined,  and  the  right  of  entry  in 
the  landlord  accrue. 

A  tenancy  may  be  determined  in  three  several  ways ; 
first,  by  the  effluxion  of  time,  or  the  happening  of  a  par- 
ticular event ;  secondly,  by  a  notice,  from  the  landlord  to 
the  tenant,  to  deliver  up  the  possession,  or  vice  versa  ;  and, 
thirdly,  by  a  breach,  on  the  part  of  the  tenant,  of  any  con- 
dition of  his  tenancy,  as,  by  the  non-payment  of  rent,  or 
the  non-performance  of  a  covenant. 

No  comments  are  necessary  upon  the  first  of  these  di- 
visions :  it  is  sufficient  to  say  generally,  that,  when  the 
time  expires,  or  the  particular  event  happens,  the  tenancy 
is  at  once  determined ;  and  that  the  landlord  may  imme- 


102       OP  THE  ACTION  OF  EJECTMENT 

diately  maintain  an  ejectment  to  recover  his  possession, 
without  giving  any  previous  notice  to  the  tenant.(g)[3] 

The  cases  comprised  in  the  second  division  must  be 
treated  of  more  fully  ;  and,  to  understand  perfectly  the 
principles  upon  which  they  have  been  decided,  it  will  be 
necessary  to  give  a  short  history  of  that  species  of  tenancy, 
now  called  a  tenancy  from  year  to  year. 

It  has  already  been  observed,  that,  until  the  reign  of 
King  Henry  VII.,  even  a  tenant,  having  a  lease  of  lands  for 
a  definite  period,  had  not  a  full  and  complete  remedy  when 
ousted  of  his  possession.  The  tenants  who,  during  those 
times,  occupied  lands  without  any  specific  grant,  held  them 
by  a  far  more  precarious  tenure.  A  general  occupation  of 
lands,  that  is  to  say,  a  holding  of  the  lands  of  another,  with- 
out any  certain  or  determinable  estate  being  limited  there- 
in, was  then  considered  as  a  holding  at  the  will  and  plea- 
sure of  the  owner  of  the  land  ;  and  the  tenant  was  liable  to 
be  ejected  at  any  moment,  by  the  simple  determination  of 
his  landlord's  will.  But  the  same  enlightened  policy, 
which  secured  to  lessees  for  years  the  complete  possession 
of  their  terms,  soon  extended  itself,  also,  to  those  general 

(g)  Roe,  d.  Jordan,  v.   Ward,  1  H.  Blk.  VJ. 


[3]  Where  tenant  for  a  year  holds  over,  he  becomes  merely  a  tenant  at  suf- 
ferance, and  is  not  entitled  to  notice  to  quit.  Jackson  v.  M'Leod,  12  Johns.  182. 

But  if  lessor  allows  the  tenant  to  remain  in  possession  seventeen  yean  after 
the  expiration  of  the  lease,  he  cannot  recover  without  notice.  Bedford  v. 
M*Eiherron,  2  Serjeant  &.  Rawle,  48. 

Where  a  lease  expires,  and,  by  the  consent  of  both  parties,  the  tenant  re- 
mains in  possession,  the  law  implies  a  tacit  renovation  of  the  contract ;  for,  in 
such  a  case,  there  is  a  prior  relation  of  landlord  and  tenant,  from  which  a  con- 
tinuance of  it  may  reasonably  be  presumed.  Jackton  v.  JMrith,  13  Johns.  109. 
1  Term  Rep.  162. 


AS  BETWEEN  LANDLORD  AND  TENANT.    103 

holdings,  then  called  tenancies  at  will ;  and,  in  the  reign 
of  King  Henry  VIII., (A)  we  find  it  holden  by  the  courts, 
that  a  general  occupation  should  be  considered  to  be  an 
occupation  from  year  to  year ;  and  that  a  person  so  hold- 
ing, should  not  be  ejected  from  his  lands,  without  a  rea- 
sonable notice  from  his  landlord  to  relinquish  the  posses- 
sion. It  was,  also,  at  the  same  time,  settled,  that  this  rea- 
sonable notice  should  be  a  notice  for  half  a  year,  expiring 
at  the  end  of  the  tenancy ;  because,  otherwise,  a  notice, 
reasonable  as  to  duration,  might  be  given,  which  would, 
notwithstanding,  operate  greatly  to  the  prejudice  of  the 
tenant,  by  ejecting  him  from  his  lands  immediately  before 
the  harvest,  or  other  valuable  period  of  the  year:  and  this 
rule  has  remained  unaltered  to  the  present  day,  except 
where  a  different  time  is  established,  either  by  express 
agreement,  or  immemorial  custom. 

A  general  occupation  of  land  now,  therefore,  enures  as  a 
tenancy  from  year  to  year,  determinable,  and  necessarily 
determinable,(?)  by  a  regular  notice  to  quit ;  and  a  hold- 
ing merely  at  the  will  of  the  landlord,  according  to  the 
ancient  meaning  of  the  term,  is  an  estate  unknown  in  mo- 
dern times,(y)  unless  when  created  by  express  agreement 
between  the  parties. (A:)  There  is,  indeed,  an  implied  mo- 
dern tenure,  denominated  a  tenancy  at  will ;  but  it  differs 
materially  from  the  old  tenancy  so  called  ;  and,  in  truth,  is 
scarcely  distinguishable  from  a  mere  permissive  occupation 
of  the  land,  independent  of  the  relationship  of  landlord  and 
tenant.  This  kind  of  tenancy  arises,  when  the  party  is  in 


(h)  13  Hen.  VIII.  16,  (6).  (j)  Tirmmns  v.  Raiclinson,  3  Burr, 

(i)    Doe,  d.   Warner,  T.  Brown,  8    16(&— 9. 

Rait,  166.  (k)    Richardton  v.  Lengridge,  4 

Taunt.  lUtt. 


104       OF  THE  ACTION  OF  EJECTMENT 

possession  of  the  premises  with  the  privity(/)  and  consent  of 
the  owner,  no  express  tenancy  having  been  created,  and 
no  act  having  been  done  by  the  owner,  impliedly  acknow- 
ledging such  party  as  his  tenant.  As  where  he  has  been 
let  into  possession  pending  a  treaty  for  a  purchase  or  a 
lease  ;(w)  or  under  a  lease,  or  which  is  void  ;(n)  or  where, 
having  been  tenant  for  a  term  which  has  expired,  he  con- 
tinues in  possession,  negotiating  for  a  new  one.(o)  In  all 
these,  and  the  like  cases,  it  is  holden,  that  the  party  being 
lawfully  in  possession,  cannot  be  ejected,  until  such  lawful 
possession  is  determined,  either  by  demand  of  possession, 
breaking  off  the  treaty,  or  otherwise,  and  the  party  is  called 
a  tenant  at  will ;  but,  in  any  of  these  cases,  if  the  landlord 
receive  rent  whilst  the  party  is  so  in  possession,  or  do  any 
other  act  amounting  to  an  acknowledgment  of  a  subsisting 
tenancy,  a  tenancy  from  year  to  year  will  be  created  there- 
by-^) 

It  is  singular,  that  we  do  not  find  in  the  old  authorities 
any  decisions  relative  to  notices  to  quit,  although  the  prac- 
tice of  giving  them  has  been  so  long  established  ;  but,  dur- 
ing the  last  fifty  years,  they  have  become  objects  of  con- 
siderable attention  to  our  courts,  and  there  is  now  no  diffi- 


(/)  Doe,  d.  Knight,  v.  Qai^/ey,  2  (o)  Dcnn,  d.  Brunt,  v.  Rawlins,  10 

Campb.505.  Right,  d  Lewis,  v.  Beard,  East,  261.     Dot,  d.  Foley,  v.  Wilson, 

13  East,  210.     Hegan  v.  Johnson,  2  11  East,  56. 

Taunt.  148.    Doe,  d.  Leeson,  v.  Sayer,  (  p)  Doe,  d.  Rigge,  v.  Bell,  6  T  R. 

SCampb.  8.  471.     Clayton  v.  Blakey,-8  T.  R.  3. 

(m)   Goodlille,  d.  Galloway,  v.  Her-  T,iunder,d.  H'eaver,v.  Belcher, 3  East, 

berl,  4  T.  R  680.    Doe,  d.  Warner,  v.  449,  451     Doe,  d.  H amer,  v.  Browne. 

Browne,  8  Eaxt,  165.  8  East,  166. 

(n)  Doe,  A  Hollingtworlh,  v.  Stcn- 
nett,  2  Esp.  717. 


AS  BETWEEN  LANDLORD  AND  TENANT.          105 

culty  in  reducing  their  requisites  to  a  clear  and  satisfac- 
tory system.  [4] 

In  considering  the  uses  and  requisites  of  the  notice  to 
quit,  our  first  inquiry  will  be  directed  to  those  particular 


[4]  The  Supreme  Court  of  the  state  of  New-York  have  considered  a  mere 
tenant  at  will  ug  not  entitled  to  notice  to  quit ;  but  have,  of  kite,  inclined  to 
construe  ail  tenancies  at  will,  into  tenancies  from  year  to  year,  for  the  pur- 
pose of  notice  to  quit.  In  Jackson  v.  Bradt,  (2  Caines'  Rep.  174.)  Kent,  C.  J.  says, 
"  The  reservation  of  an  annual  rent  is  the  leading  circumstance  that  turns 
leases  for  uncertain  terms  into  leases  from  year  to  year.  It  has  frequently 
been  decided  by  this  court,  tiiat  a  mere  tenant  at  will  is  not  entitled  to  no- 
tice to  quit." 

In  the  subsequent  case  of  Jackson  v.  Bryan,  (1  Johns.  322.)  it  was  de- 
cided, that  where  defendant  entered  on  land  with  owner's  permission,  and 
made  improvements,  but  no  rent  was  reserved,  after  a  possession  of  eighteen 
years,  he  was  held  to  be  tenant  from  year  to  year,  and  entitled  to  notice  to 
quit.  And  Spencer,  J.  says,  "  That  tenancies  at  will  exist  nominally,  and 
good  policy,  as  well  as  common  justice,  seem  to  demand,  that  a  holding 
for  an  indefinite  period  should  be  construed  into  a  tenancy  from  year  to  year." 
Ibid.  326. 

A  mortgagor  is  entitled  to  notice  to  quit,  previous  to  ejectment  by  the  mort. 
gagee  ;  "  for,''  say  the  court,  "  he  is  quasi  tenant  at  will,  and  the  notice  to 
quit  is  a  mere  matter  of  practice,  which  we  are  at  liberty  to  regulate,  even 
in  opposition  to  the  English  decisions  "  Jackson  v.  Dcyo,  3  Johns.  422. 
Jackson  v.  Lnvglihead,  2  Johns.  75.  Jackson  v.  Green,  4  Johns.  186.  But 
a  purchaser  from  the  mortgagor  is  not  entitled  to  notice,  for  there  is  no  privi- 
ty between  him  and  the  mortgagee.  Jackson  v.  Fulltr,  4  Johns.  215.  Jackson 
v.  Chase,  2  Johns.  84. 

The  six  months  advertisement  under  the  statute,  is  equivalent  to  six  months 
notice  to  quit.  Jackson  v.  Lammn,  17  Johns.  300. 

A  tenant  at  will  is  considered  as  holding  from  year  to  year  only  for  the  pur- 
pose of  a  notice  to  quit ;  but  he  has  no  right  to  such  notice  after  he  determines 
the  will  by  an  act  of  voluntary  waste.  Phillipt  v.  Covert,  7  Johns.  1.  Co. 
Lilt.  57,  a.  6  Co.  13,  a.  Cro.  Eliz.  777,  784. 

In  Jackson  v.  Wilsey,  9  Johns.  267.  the  court  seemed  inclined  to  the  opinion, 
that  a  tenant  at  will  is  entitled  to  notice  to  quit.  They  cite  Might  v.  Beard,  13 
East,  211.  where  Lord  Ellcnborough  says,  "after  lessor  had  put  defendant 
into  possession,  he  could  not,  without  a  demand  of  the  possession,  and  re- 
fusal by  the  defendant,  treat  the  defendant  as  a  wrong  doer  and  trespasser, 
*8  he  assumes  to  do  by  his  declaration  in  ejectment" 

14 


106       OF  THE  ACTION  OF  EJECTMENT 

cases  in  which  implied  tenancies  from  year  to  year  are 
created,  although  the  direct  relationship  of  landlord  and 
tenant  does  not  exist ;  we  shall  then  consider  by  whom, 
and  to  whom,  the  notice  should  be  given ;  then  proceed  to 
the  form  of  the  notice,  and  the  particular  times  required 
in  certain  cases,  for  its  expiration;  and,  lastly,  point  out  the 
means  by  which  the  notice  may  be  waived. 

No  tenancy  from  year  to  year  exists  between  a  mort- 
gagor and  his  mortgagee ;  but  the  mortgagee  may  maintain 
an  ejectrncii  against  the  mortgagor,  after  the  forfeiture  of 
the  mortgage,  without  any  previous  notice  to  quit  the  pre- 
mises :(<?)  and  the  principle  of  this  seems  to  be,  not  that 
the  mortgagor  is  tenant  at  will  to  the  mortgagee  after  the 
forfeiture  ;  but  that  he  is  then  acting  as  a  kind  of  trustee  to 
the  mortgagee,  subject  to  have  his  authority  concluded  at 
the  mortgagee's  pleasure. (r) 

The  under  lessees  of  the  mortgagor  are  also  liable  to  be 
ejected  without  any  notice,  provided  they  have  been  let 
into  possession  by  the  mortgagor,  subsequent  to  the  mort- 
gage, and  without  the  privity  of  the  mortgagee,  whether 
they  hold  as  tenants  from  year  to  year,  or  by  leases  execut- 
ed after  the  date  of  the  mortgage.  But  if  a  lease  be  granted 
by  a  mortgagor  with  the  concurrence  of  the  mortagee,  or 
if  a  mortgagee,  with  knowledge  that  the  mortgagor  has 
granted  a  lease,  encourage  the  tenant  to  lay  out  money 
upon  the  premises,  it  may  admit  of  doubt,  whether  by  such 
conduct  the  mortgagee  has  not  coi. firmed  the  lease,  or  so 
far  at  least  acknowledge  the  lessee  as  his  tenant,  as  to  ren- 
der a  notice  to  quit  necessary  before  he  can  maintain  eject- 

(9)  Birch  v.  Right,  \  T.  R.  378.  83.        (r)  Moa  v.  GtUKmon,  Doug.  279. 

82. 


AS  BETWEEN  LANDLORD  AND  TENANT.    107 

ment  against  him.(s)  With  respect  to  tenancies  created 
prior  to  the  mortgage,  the  situation  of  the  mortgagee  is 
of  course  the  same  as  that  of  the  mortgagor  before  the 
mortgage  was  made.(/) 

The  assignees  of  the  mortgagee  have  also  the  like  privi- 
leges with  regard  to  under-tenants  ;  and  the  right  of  an 
assignee  to  maintain  ejectment  without  a  notice  to  quit, 
will  not  be  taken  away  by  a  tenancy  created  prior  to  the 
assignment,  provided  such  tenancy  commenced  subsequent- 
ly to  the  date  of  the  mortgage,  and  continued  unacknow- 
ledged by  the  mortgagee,  (w) 

When  a  party  has  obtained  possession  of  premise?  be- 
longing to  another,  and  the  owner  does  any  act  from  which 
a  jury  may  infer  that  he  intends  to  acknowledge  him  as  his 
tenant,  a  tenancy  from  year  to  year  is  created  by  such  act, 
and  the  party  will  be  entitled  to  a  regular  notice  to  quit 
before  he  can  be  ejected.  Thus,  if  a  landlord  suffer  his 
tenant  to  continue  in  possession  after  the  expiration  of  his 
lease,  and  receive  rent  from  him  accruing,  subsequently  to 
the  period  of  such  expiration,  he  becomes  thereby  his  te- 
nant from  year  to  year,  upon  the  conditions  of  the  original 
lease.  So,  also,  if  a  tenant  for  life  make  a  lease  void  against 
the  remainder-man,  and  the  lessee  enter,  and  then  the 
tenant  for  life  die,  if  the  remainder-man  receive  rent  from 
such  lessee,  accruing  subsequently  to  the  death  of  the  te- 
nant for  life,  such  receipt  of  rent,  although  it  will  not  amount 
to  a  confirmation  of  the  lease,  will  be  sufficient  (if  the  rent 

(*)  Doe,  d.  Sheppard,  v.  Allen,  3  378.    Doe,  d.  Shcppard,  r.  Allen,  3 

Taunt.  73.  Taunt.  78. 

(/)   H'arnc,  d.  Kcecfi,  v.  Hall,  Doug.  (u)   Tl, under,  d.  Weaver,  r.  Belcher, 

21.     Tlinnder,  d.  Hearer,  v.  Bilrlier,  3  Kast,  449. 
3  East,  449.     Bitch  v.  Hn^l,  1  T.  R. 


108  OF  THE  ACTION  OF  EJECTMENT 

be  adequate  to  the  value  of  the  premises)  (T)  to  establish  a 
tenancy  from  year  to  year,  upon  the  terms  of  it,  between 
the  remainder-man  and  the  lessee  :  and  it  will  be  no  an- 
swer for  the  remainder-man,  that  he  was  ignorant  of  his 
title  when  he  received  the  rent ;  for  it  is  more  reasonable 
that  the  remainder-man,  who  ought  to  have  looked  into  his 
title,  should  be  bound  by  his  own  act,  than  that  the  lessee 
should  be  prejudiced  by  his  ignorance,  (zo)  In  like  manner, 
when  a  party  is  let  into  possession,  under  a  lease  void  by 
the  statute  of  frauds,(.r)  payment  and  receipt  of  rent  will 
not  establish  the  lease,  but  it  will  create  a  tenancy  from 
year  to  year,  regulated  by  its  covenants  and  conditions.(i/) 
The  same  principle  also  holds,  if  the  party  come  into  pos- 
session under  an  agreement  or  lease,  invalid  from  any  other 
circumstance  :  as  where  the  party  held  under  an  agree- 
ment that  the  lessee  should  pay  a  certain  rent,  and  that  the 
lessor  should  not  turn  out  the  lessee  so  long  as  the  rent  wa? 
duly  paid  quarterly,  and  the  lessee  did  not  expose  to  sale, 
or  sell  any  article  that  might  be  injurious  to  the  lessor  in 
his  business,  which  agreement  was  invalid,  inasmuch  as  it 
would  (if  the  tenant  complied  with  the  terms  thereof)  ope- 
rate as  an  estate  for  life,  which  can  only  be  created  by  deed 
as  a  feoffment  or  conveyance  to  uses,  yet  the  lessee  hav- 
ing been  let  into  possession,  and  rent  having  been  paid  and 
received,  a  tenancy  from  year  to  year  was  created  thereby.(z) 

The  same  rule  prevails  when  a  party  is  let  into  possession 
under  a  valid  agreement  for  a  future  lease.     As  no  interest 

(r)  Doe,  d.  Brune,  v.  Prideauz,  10  (a:)  29  Car.  2.  c.  3. 

East,  158.     Denn,  d.  Brune,  T.  Raw-  (y)  Doe,  d.  Riggef  T.  Bell,  6  T.  R. 

Km,  10  East,  2<>1.  471.     Clayton  v.  Blakey,  8  T.  R.  3. 

(w)  Roe,  d.  Jordan,  v.  ll'nrd,   1  II.  (z)  Due,  d.  Warner,  v.  Browne,  8 

Black.  97.     Doe,  d.  Martin,  v.  Walls,  East,  105. 
7  T.  R.  83 


AS  BETWEEN  LANDLORD  AND  TENANT.    109 

in  the  land  passes  under  such  an  agreement,  no  tenancy  is 
rreated  thereby  ;  but  the  party  being  let  into  possession, 
and  rent  being  paid  and  received,  he  becomes,  as  in  the 
cases  already  mentioned,  a  tei\aut  from  year  to  year. 

It  is  frequently  difficult  to  determine,  from  the  words  of 
an  instrument,  whether  it  will  operate  as  a  lease,  or  only 
as  an  agreement  for  one  ;  and  it  may  be  therefore  useful, 
although  the  subject  does  not  strictly  fall  within  the  limits 
of  this  treatise,  shortly  to  consider  the  points  which  have 
arisen  in  cases  of  this  description. 

Formerly,  when  an  agreement  contained  words  of  pre- 
sent demise,  it  was  held  to  amount  to  an  absolute  lease, 
although  covenants  were  added,  prospective  of  some  fur- 
ther act  to  be  done,  such  covenants  being  construed  to  be 
merely  in  further  assurance.  As  where,  before  the  statute 
of  frauds,  a  party  said,  "  you  shall  have  a  lease  of  my  lands 
in  D.  for  twenty-one  years,  paying  therefor  10s.  per  an- 
num ;  make  a  lease  in  writing,  and  I  will  seal  it :"  this  was 
held  a  good  lease  by  parol,  and  the  making  of  it  in  writing 
was  but  a  further  assurance. (a)  So,  also,  and  for  a  similar 
reason,  the  words,  doth  let,  in  articles  of  agreement,  have 
been  held  a  present  demise,  although  there  was  a  further 
covenant,  "  that  a  lease  should  be  made  and  sealed,  accord- 
ing to  the  effect  of  the  articles,  before  the  feast  of  All  Saints 
next  ensuing."(/>)  But  a  different  principle  now  prevails. 
The  intention  of  the  parties  is  alone  considered,  and,  to 
use  the  words  of  Lord  Ch.  B.  Gilbert,  "  if  the  most  proper 
form  of  words  of  leasing  are  made  use  of,  yet  if,  upon  1  lie- 
whole,  there  appears  no  such  iutent,  but  that  the  instru- 

(a)  Maldon't  case,  Cro.  Eliz.  33.  (6)  Harrington  v.  Wiie,  Cro.  Eli*. 

486.    No/,57. 


lit)  OP  THE  ACTION  OF  EJECTMENT 

tnent  is  only  preparatory  and  relative  to  a  future  lease  to 
be  made,  the  law  will  rather  do  violence  to  the  words,  than 
break  through  the  intent  of  the  parties,  by  construing  a 
present  lease,  when  the  intent  was  manifestly  otherwise. "(c) 
Thus,  where  articles  were  drawn  up  as  follows,  "  A.  duth 
demise  his  close  to  S.,  to  have  it  for  forty  years."  and  a  rent 
was  reserved  with  a  clause  of  distress,  upon  which  articles 
a  memorandum  was  also  written  "  that  the  articles  were  to 
be  ordered  by  counsel  of  both  parties,  according  to  the  due 
form  of  law :"  it  was  ruled,  that  the  articles  were  not  a 
sufficient  lease. (d)  So  where  the  words  were,  "  A.  doth 
agree  to  let,  and  B.  agrees  to  take,"  for  a  certain  term,  at 
a  certain  rent,  all  his  estates,  the  said  B.  to  enter  upon  the 
premises  immediately,  and  it  was  further  agreed,  that  leases 
with  the  usual  covenants  should  be  made  and  executed  by 
a  certain  date ;  the  stipulation  that  leases  should  be  so 
drawn,  was  held  to  show  plainly  that  it  was  not  the  inten- 
tion of  the  parties  that  such  agreement,  although  containing 
words  of  present  demise,  should  operate  as  a  lease,  but  only 
to  give  the  defendant  a  right  to  the  immediate  possession 
till  a  lease  could  be  drawn. (e)  So,  also,  where,  upon  an 
agreement  stamp,  A.  agreed  to  demise  and  let  certain  copy- 
hold premises,  for  a  certain  term,  at  a  certain  rent,  and 
further  undertook  to  procure  a  license  to  let  such  premises, 
the  court  held,  that  the  instrument  was  an  executory  agree- 
ment only,  for  two  reasons  ;  first,  because,  if  it  were  held 
to  be  a  lease,  a  forfeiture  would  be  incurred,  which  would 
be  contrary  to  the  intent  of  the  parties,  who  had  cautiously 
guarded  against  it,  by  the  insertion  of  a  covenant,  that  a 
license  to  lease  should  be  procured  from  the  lord ;  and,  se- 


(c)  Bae.  Ab  tit.  Leases,  164.— Box-  (d)  Sturgion  v.  Painter,  Noy,  128. 
ter,  d.  Abrahall,  \.  Browne,  2  Black.  (e)  Goodtitle,  d.  Estwick,  v.  Way, 
»73-4.  1  T.  R.  735. 


AS  BETWEEN  LANDLORD  AND  TENANT.          HI 

condly,  because  the  stamp  was  conformable  to  the  nature  of 
an  agreement  for  a  lease,  and  not  adapted  to  an  absolute 
lease.(/)  So,  also,  where  the  words  were,  "  that  the  said 
mills  he  shall  hold  and  enjoy,  and  I  engage  to  give  a  lease 
in,  for  a  certain  term,"  &c.  it  was  ruled,  that  the  words, 
"  -hail  hold  and  enjoy,"  would  have  operated  as  words  of 
present  demise,  if  they  had  not  been  controlled  by  those 
which  followed. (g)  So,  also,  where  the  words  were, 
"agreed  this  day  to  let  my  house  to  B.,"  for  a  certain  term, 
"  a  clause  to  be  added  in  the  lease,  to  give  my  son  a  power," 
&c.  it  was  considered  to  be  manifest,  from  the  latter  words, 
that  a  future  instrument  of  demise  was  contemplated.^) 
And,  in  a  late  case,  where,  in  an  instrument  which  con- 
tained words  of  present  demise,  there  was  no  direct  refe- 
rence to  any  future  lease,  but  it  appeared,  upon  taking  the 
whole  instrument  together,  that  a  future  lease  was  intended, 
the  same  rule  of  construction  prevailed.  In  this  latter 
case  the  agreement  was,  "  A.  agrees  to  let  to  B.  all  his 
farm,  &c.  (except  three  pieces  of  land,)  to  hold  for  twenty- 
one  years,  determinablc  at  the  end  of  the  first  fourteen,  at 
the  yearly  rent  of  26/.  payable,  &c.  and  at  and  under  all 
other  usual  and  customary  covenants  and  agreements,  as 
between  landlord  and  tenant  where  the  premises  are  si- 
tuate : — A.  to  allow  a  proportionate  part  of  the  rent,  for 
the  three  pieces  of  land  above  excepted ;"  and  the  court 
held,  that  it  amounted  only  to  an  agreement  for  a  lease  for 
the  following  reasons :  because,  "  at  the  yearly  rent,  &c." 
and,  "  at  and  under  all  usual  covenants,  &c."  is  not  the 
language  in  which  a  lawyer  would  introduce  into  a  lease 


(/)  Doe,  d.  Coore,  v.  Clare,  2T.        (K)  Doe,  A.  Brow-frit,  v.  Smith,  * 
R.  739.  Bast,  530. 

(g)  Roe,  d.  Jarkton,  v.  JHtburner,, 
ft  T.  R.  1«3 


112       OF  THE  ACTION  OF  EJECTMENT 

the  technical  covenant  for  further  assurance,  but  contem- 
plates tin-  entire  making  of  an  original  lease :  and  because 
no  landlord  or  tenant  of  common  sense  would  enter  on  a 
term  for  twenty-one  years,  without  ascertaining  what  were 
the  teYms  on  the  one  side  and  the  other,  by  which  they 
were  to  be  bound  for  that  period,  and  what  was  to  be  the 
rent  apportioned  for  the  excepted  premises. (i)  But  where 
an  instrument,  upon  an  agreement  stamp,  was  as  follows, 
"  A.  agrees  to  let,  and  B.  agrees  to  take,  all  that  land, 
&c.  for  the  term  of  sixty-one  years  from  Lady-day  next, 
at  the  yearly  rent  of  1 20/. ;  and  for  and  in  consideration 
of  a  lease  to  be  granted  by  the  said  A.  for  the  said  term  of 
years,  the  said  B.  agrees  to  expend  2,000/.  in  building, 
within  four  years,  five  houses  of  a  third  class  of  building  ; 
and  the  said  A.  agrees  to  grant  a  lease  or  leases  of  the 
said  land,  as  soon  as  the  said  houses  are  covered  in,  and 
the  said  B.  agrees  to  take  such  lease  or  leases,  and  exe- 
cutes a  counterpart,  or  counterparts  thereof: — this  agree- 
ment to  be  considered  binding,  till  one  fully  prepared  can  be 
produced;''1  the  court  held  the  same  to  be  a  lease,  con- 
sidering it  to  be  the  intention  of  the  parties,  that  the  te- 
nant, who  was  to  expend  so  much  capital  upon  the  pre- 
mises within  the  first  four  years  of  the  term,  should  have  a 
present  legal  interest  in  the  term,  which  was  to  be  binding 
upon  both  parties  ;  although,  when  a  certain  progress  was 
made  in  the  buildings,  a  more  formal  lease  or  leases,  in 
which,  perhaps,  the  premises  might  be  more  particularly 
described,  for  the  convenience  of  underletting  or  assigning, 
might  be  executed. (j)  So,  also,  where  the  instrument  was, 
"  A.  agrees  to  let,  and  also,  upon  demand,  to  execute,  to 
B.  a  lease  of  certain  lauds,  and  B.  agrees  to  take,  and 

(t)  Morgan,  d.  Dowding,  v.  Bistcll,        (j)  Pwle  v.  Bentlty,  12  East,  166 
3  Tauut.  66. 


AS  BETWEEN  LANDLORD  AND  TENANT.          113 

upon  demand,  to  execute  a  counterpart  of  a  lease  of  the 
?aid  lands  for  a  certain  term,  at  a  certain  rent ;  the  lease 
to  contain  the  usual  covenants,  and  the  agreement  to  bind 
until  the  said  lease  be  made  and  executed,"  &c.  it  was 
held  to  be  a  present  demise  ;  and  that  the  agreement  for 
a  future  lease,  with  further  covenants,  was  for  the  better 
security  of  the  parties.  (/c)[5] 

(k)  Boc,  d.  Wctlker,  v.  Groves,  16  East,  244. 

[5]  A  memorandum  for  a  lease,  by  which  A.  agrees  to  let  on  lease  to  B.  for  font 
years,  from  a  certain  day,  at  a  certain  rent ;  then  follow  certain  conditions  to 
be  performed  by  B. ;  and  it  is  added,  that  B.  agrees  to  take  the  premises  on 
said  terms  and  conditions.  Held,  that  this  was  a  lease,  and  not  an  agreement 
for  a  lease.  Haltett  v.  Wylic,  3  Johns.  44.  and  in  case  of  B.'s  being1  kept  out 
of  possession,  his  remedy  is  ejectment,  and  »ot  an  action  on  the  covenant. 
Thornton  v.  Payne,  5  Johns.  74. 

A  memorandum  of  an  agreement  stated,  that  A.  "  hath  set,  and  to  farm 
let,  unto  B.,  all  that  farm,  Sic.  for  the  rent  of,  &c.  for  the  use  of  B.  and  his 
wife  ;  the  place  to  be  surveyed  on  or  before  the  1st  June  next,  and  then  the 
said  B.  is  to  takt  a  least  for  the  same."  After  a  possession  in  B.,  and  pay- 
ment of  rent  for  fourteen  years,  this  was  held  to  amount  to  a  lease  in  prasenti. 
Jackson  v.  Killenbnck,  10  Johns.  336. 

In  this  case  Spencer,  J.,  says,  "  None  of  the  cases  will  be  found  to  contra- 
"diet  the  position,  that  where  there  are  apt  words  of  present  demise,  and  to 
"  these  are  superadded  a  covenant  for  a  further  lease,  the  instrument  is  to  be 
"  considered  as  a  lease,  and  the  covenant  operating  as  a  covenant  for  further 
"  assurance.  The  case  of  Baxter  v.  Brown,  (2  W.  Bl.  Rep.  973.)  is  much  in 
•'•  point.  The  agreement  was  to  grant  a  lease  to  Brown  of  the  premises,  and 
"  they  did  thereby  set  and  let  to  him  all,  &ic. ;  provided  that  the  said  lease  shall 
"  be  void  on  the  non-payment  of  rent,  &.<-.,  and  that  such  lease  shall  contain  Lite 
"  usual  covenants,  iic.  The  defendant  entered  in  pursuance  ol  such  agree- 
"  iiu  nt ,  and  paid  rent,  and  it  was  held  by  all  the  judges,  that  it  was  clearly 
"  a  good  lean1  I'M  jirrcsenti,  with  an  agreement  for  a  more  formal  lease  in  fu- 
41  ture.  We  believe  that  there  is  no  case  of  a  present  demise,  by  apt  words, 
"  followed  by  a  possession,  in  which  the  instrument  has  not  been  held  to  pass 
''  an  immediate  interest." 

A  covenant  in  a  lease  by  the  lessor,  to  let  the  lot  at  the  expiration  of  the 
U-rm  ti>  the  lessee,  without  mentioning  the  time  for  which  it  was  to  be  let,  is 
altogether  void  for  uncertainty.  Jibed  v.  Radcliff,  13  Johns.  300. 

Nor  would  Chancery,  in  this  case,  interfere  to  compel  a  specific  perfor- 
mance. 12  Ves.  466.  1  Scho.  &.  Lef.  22.  Free,  in  Chan.  560.  11  East,  142. 
1  Atkyns,  12.  3  Johns.  399.  2  Vern.  415.  1  Ves.  Jun.  27V. 

15 


114  OF  THE  ACTION  OF  EJECTMENT 

But  to  return  to  the  subject  of  implied  tenancies  from 
year  to  year.  In  all  the  cases  already  mentioned,  the 
mode  of  acknowledging  the  tenancy,  was  by  the  payment 
and  receipt  of  rent,  which,  indeed,  is  the  common  evidence 
in  cases  of  this  nature.  But  the  intention  to  create  such  a 
tenancy  may  be  inferred  from  other  circumstances.  Thus, 
where  lands  descended  to  an  infant,  with  respect  to  whom 
the  tenant  in  possession  was  a  trespasser,  and  an  ejectment 
was  brought  on  the  demise  of  the  infant,  and  compromised 
by  his  attorney  upon  certain  terms,  one  of  which  was, 
that  the  tenant  should  attorn  to  the  infant,  it  was  ruled  by 
Lord  Kenyon,  C.  J.  at  Nisi  Prius,  upon  a  second  eject- 
ment being  brought  by  the  infant,  when  he  attained  his 
full  age,  that  although  the  infant  was  no  party  to  the  agree- 
ment, nor  had  confirmed  it,  nor  received  rent  since  he 
came  of  age,  yet  that  such  agreement  having  been  entered 
into,  without  fraud  or  collusion,  after  an  ejectment  brought 
at  his  suit,  had,  by  his  acquiescence  therein,  established 
the  defendant's  title  as  against  himself,  and  created  a  new 
tenancy,  which  could  only  be  determined  by  a  notice  to 
quit.(/)  So,  also,  where  a  feme  covert  lived  many  years  se- 
parated from  her  husband,  and  during  that  time  received 
to  her  separate  use  the  rents  of  certain  lands,  which  came 
to  her  by  devise  after  separation,  it  was  presumed,  that  she 
received  the  rents  by  her  husband's  authority,  and  held, 
that  a  notice  to  quit  must  be  given  by  him  before  he  could 
maintain  ejectment. (m) 

But  it  is  necessary  that  some  act  of  acknowledgment 
should  take  place ;  a  mere  permission  by  the  owner  to  oc- 


(l)  Doe,  d.  Miller,  v.  JVoden,  2  Esp.        (m)  Doc,  d.  Leicester,  v.   Biggs,  I 
628.  Taunt.  367. 


AS  BETWEEN  LANDLORD  AND  TENANT.          115 

cupy  the  premises  will  not  be  sufficient,  under  any  cir- 
cumstances, to  create  a  tenancy  requiring  a  notice  to  quit, 
although,  in  some  instances,  as  we  have  already  remarked, 
it  may  create  a  tenancy  at  will.(n)[6] 

(»)  Ante,  103,  104. 


[6]  A  notice  to  quit  a  only  necessary  where  the  relation  of  landlord  and 
tenant  subsists.  So,  where  A.  conveys  to  B.,  and  B.  to  (' ,  and  A.  remains 
in  possession  ten  years,  no  tenancy  is  created  between  A.  and  C  ,  and  A.  is  not 
entitled  to  notice  to  quit  from  C.  The  relation  of  landlord  and  tenant  cannot 
be  presumed  from  the  naked  fact,  that  the  defendant  continued  in  possession. 
The  utmost  that  A.  could  claim  was  a  tenancy  at  will  between  him  and  B., 
which  will  was  determined  by  the  conveyance  to  C.  Jackson  v.  Aldrich,  13 
Johns.  106.  Spencer,  J.  dissenting. 

Defendant  claiming  to  hold  in  fee,  is  not  entitled  to  notice.  Jackson  r. 
Dryo,  3  Johns.  42-2. 

A  person  holding  land  bj  a  parol  gift  (and  consequently  merely  a  tenant  at 
will)  leases  the  land,  and  the  donor  merely  permits  the  lessee  to  build,  and  en- 
joy the  term,  a  tenancy  is  not  thereby  created,  and  the  lessee  is  not  entitled 
to  notice  to  quit.  Jackson  v.  Rogers,  1  Johns.  Cas.  33.  Same  case,  2  Caines' 
CBS.  in  Error,  314. 

A.,  a  lessee,  agrees  to  sell  a  lease  to  B.,  who  endorses  his  name  on  the 
lease,  and  delivers  it  to  B.,  who  pays  the  purchase  money,  and  agrees  to  pay 
the  rent  in  arrear,  and  to  become  due,  to  the  lessor.  Held,  that  by  this  agree, 
meat  the  relation  of  landlord  and  tenant  was  not  created,  and  that  B.  was 
not  entitled  to  notice  to  quit.  Jackson  v.  Kingsley,  17  Johns.  158. 

The  better  opinion  is,  that  a  person  entering  on  land,  under  a  contract  for 
a  deed,  is  not  a  tenant,  nor  entitled  to  notice  to  quit;  but,  on  the  non-perfor- 
mance of  his  contract,  is  liable  to  be  turned  out  as  a  trespasser.  Smitk  v. 
Sleuart,  6  Johns.  46. 

A  person  holding  adversely,  applies  to  the  lessor  "  to  be  considered  as  his 
"  tenant  in  possession  ;"  there  is  no  tenancy  created,  and  he  is  not  entitled  to 
notice  to  quit,  for  defendant  merely  wUhes  to  be  deemed  the  occupier,  having 
the  equitable  right  of  pre-emption.  Jarksun  v.  Cuerden,  2  Johns.  Cas.  353. 

\Vheredefendttiitentered  adversely,  a  permission  by  the  lessor  of  the  plain. 
tilT  to  continue  in  possession,  and  a  disclaimer  by  the  defendant  of  holding 
adversely,  will  not  constitute  him  tenant,  sons  to  entitle  him  to  notice  to  quit. 
Jackson,  v  Tyler,  2  Johns.  444. 

A  servant  or  bailiff  is  not  entitled  to  notice  to  quit.  Jackson  v.  Sample,  1 
Johns.  Cas.  231. 

Where  lessee  takes  possession  of  more  land  than  was  contained  in  his  lease, 
«ad  pays  rent  for  the  entire  premises,  he  becomes  tenant  trow  year  to  year 


llt>  OP  THE  ACTION  OF  EJECTMENT 

Thus,  where  the  party  was  let  into  possession,  under  au 
agreement  for  the  purchase  of  the  land,  and  had  posses- 
sion formally  given  to  him,  and  paid  part  of  the  purchase 
money,  the  court  held,  that  the  premises  might  be  recover- 
ed in  ejectment,  upon  a  demand  of  possession,  without  any 
notice  to  quit.(o)  And  where  the  vendor  of  a-  term,  after 
payment  of  part  of  the  purchase  money,  let  the  purchaser 
into  possession  upon  an  agreement,  that  he  (the  purchaser) 
should  have  possession  of  the  premises  until  a  given  day, 
paying  the  reserved  rent  in  the  meanwhile,  and  that  if 
he  should  not  pay  the  residue  of  the  purchase  money  on 
that  day,  he  should  forfeit  the  instalments  already  paid, 
and  not  be  entitled  to  an  assignment  of  the  lease ;  it  was 
held,  that  the  vendor  might  maintain  ejectment  without 
notice  to  quit,  or  even  demand  of  possession,  the  pur- 
chaser having  failed  to  complete  the  purchase  at  the  ap- 
pointed day.(/>)  So,  also,  where  the  party  took  possession 

(o)  Right,  d.  Lewis,  v.  Beard,  13  (p)  Doe,  d.  Leuon,  v.  Sayer,  3 
East,  210.  Campb.  8. 


of  the  whole,  and  in  ejectment  for  the  land  not  included  in  the  lease,  is  en- 
titled to  notice  to  quit.  Jackson  v.  If'ilsey,  9  Johns  267. 

Where,  by  an  agreement  for  the  snip  of  lands,  defendant  pays  part  of  the 
purchase  money,  and  takes  possession  under  the  agreement,  the  vendor  can- 
not maintain  ejectment  without  notice  to  quit.  Jackxon  v.  Rowan,  9  Johns.  330. 

And  so,  where  A.  was  to  receive  a  deed  when  the  whole  of  the  purchase 
money  should  be  paid,  and  in  the  mean  time  to  pay  an  annual  rent,  A.  hav- 
ing paid  rent,  becomes  a  tenant,  and  is  entitled  to  notice  to  quit.  Jackson  v. 
tfiren,  10  Johns.  335. 

Letting  land  to  a  person  for  one  year  to  cultivate  on  shares  makes  him  a 
tenant,  and  not  a  mere  labourer  or  servant.  Jackson  v.  Brownetl,  1  Johns.  267. 

But  letting  land  on  shares  for  a  single  crop  does  not  amount  to  a  lease  of 
the  laud,  and  the  owner  alone  cau  bring  trespass.  Bradisli  v.  Scltenck,  8  Johns. 
151. 

Where  land  was  leased  for  a  number  of  years,  the  lessee  paying  half  of  the 
annual  crops,  it  was  held,  that  the  interest  in  the  soil  passed  to  the  lessee, 
and  that  his  interest  in  the  crops  was  exclusive,  until  he  separate  and  deli- 
ver to  the  lessor  his  proportion.  Stewart  v.  Doughty,  9  Johns.  108. 


AS  BETWEEN  LANDLORD  AND  TENANT.     117 

under  an  agreement,  that  the  owner  would,  by  indenture, 
demise,  &c.  this  was  holden  to  be  a  mere-  permissive  oc- 
cupation, until  the  execution  of  the  indenture. (9)  And 
where  a  man,  having  obtained  possession  of  a  house  with- 
out the  landlord's  privity,  afterwards  entered  into  a  nego- 
tiation with  him  for  a  lease,  which  failed,  the  same  rule 
of  construction  prevailed. (r)  In  like  manner,  where  a 
tenant  whose  lease  had  expired  continued  in  possession, 
pending  a  treaty  for  a  further  lease,  no  tenancy  from  year 
to  year  was  created  by  such  possession  and  negotiation, 
although  it  was  held,  that  the  landlord  had  so  far  thereby 
acknowledged  the  defendant  as  his  tenant,  as  to  preclude 
him  from  recovering  in  ejectment,  upon  a  demise  anterior 
to  the  termination  of  the  treaty.(s)  When,  also,  a  party 
is  admitted  into  possession  under  an  invalid  lease  or  agree- 
ment, no  notice  to  quit  is  necessary,  until  the  landlord  has 
acknowledged  the  tenancy,  although,  in  these  cases,  also, 
the  party  becomes  tenant  at  will  to  the  landlord,  and  can- 
not be  ejected  until  the  landlord  has  demanded  possession, 
or  in  some  other  manner  determined  the  will.(/) 

As,  however,  the  implied  tenancies  from  year  to  year  here 
treated  of,  depend  wholly  upon  the  presumption  that  it 
was  the  intention  of  the  parties  to  create  them,  evidence 
may  always  be  received  to  rebut  such  presumption,  and 
shew  their  real  meaning.  Thus,  where  a  remainder-man, 
on  the  death  of  the  tenant  for  life,  gave  notice  to  the  tenant 
in  possession  under  a  lea.se,  granted  by  the  tenant  for  life, 
but  void  against  the  remainder-man,  to  quit  at  the  end  of 

(<?)  Hrganv.  Johnson,  2  Taunt.  148.  (/)  Goodlitle,  d.  Herbert,  v.  Gal- 

(r)  Doe,  d.  Knight,  v.  QuigUy,  2  loicay,  4  T.  K.  680.  Clayton  v.  Bla- 

Campb.  605.  key,  8  T.  R.  3.  Ifiunder,  d.  Wearer, 

(s)  Doe,  d.  Hollingtworth,  v.  -S/en-  v.  Btldier,  3  East,  449.  451.  Doe,  d 

ne«,  2  Esp.  716.  Warntr,  T.  Browne,  8  East,  166. 


118  OF  THE  ACTION  OF  EJECTMENT 

six  months,  and  subsequently  to  the  giving  of  the  notice, 
but  before  its  expiration,  received  a  quarter's  rent,  accru- 
«M,'  after  the  death  of  the  tenant  for  life,  it  was  ruled  by 
Blackstone,  J.,  that  the  previous  notice  to  quit  rebutted 
the  presumption  of  a  tenancy  from  year  to  year,  raised  bj 
the  acceptance  of  the  rent.(u)  So,  also,  where  the  rent  is 
not  paid  and  received,  as  between  landlord  and  tenant, 
but  upon  some  Other  consideration,  no  tenancy  from  year 
to  year  will  be  created,  nor  will  a  notice  to  quit  be  neces- 
sary. The  payment  of  a  customary  rent  for  copyhold  pre- 
mises has  been  held  to  be  a  payment  of  this  nature  ;  and, 
if  the  tenant  hold  such  premises-  by  a  title  or  tenure,  which 
is  not  supported  by  the  custom  of  the  manor,  the  receipt 
of  the  quit-rent  from  him  by  the  lord  will  not  create  a  te- 
nancy from  year  to  year.(v) 

Upon  the  same  principle,  where  a  tenant  in  tail  receiv- 
ed an  ancient  rent,  which  was  but  trifling  when  compared 
with  the  real  value  of  the  premises,  and  which  had  been 
reserved  under  a  void  lease  granted  by  the  tenant  for  life 
under  a  power,  upon  a  special  case  reserved  for  the  opinion 
of  the  Court  of  King's  Bench,  they  intimated  that  a  jury 
should  be  strongly  advised  not  to  imply  a  tenancy  from 
year  to  year  from  such  payment  and  receipt,(w)  although, 
in  a  subsequent  case  upon  the  same  title,  they  were  of 
opinion  that  it  amounted  to  an  acknowledgment  of  a  te- 
nancy at  will. (a:) 

If  the  tenant  set  his  landlord  at  defiance,  and  do  any  act 
disclaiming  to  hold  of  him  as  tenant ;  as,  for  instance,  if  h« 

(a)  Si/kes,  d.  Murgatoyd,  v. ,  (ir)  Roe,  d.  Brune,  v.  Prideaux,  10 

cited  iu  Right,  d.  Fowltr,  v.  Darby,  1  East,  158. 

T.  R.  161.  (x)  Denn,  d.  Brune,  v.  Rawlins,  10 

(t>)  Right,  d.  Dean  of  Wellt,  v.  Bane-  East,  261. 
<len,  3  East,  260. 


AS  BETWEEN  LANDLORD  AND  TENANT.    119 

attorn  to  some  other  person,  no  notice  to  quit  will  be  ne- 
cessary ;  for,  in  such  case,  the  landlord  may  treat  him  as  a 
tre8passer.(y)[7]  It  has,  however,  been  held,  that  a  re- 
fusal to  pay  rent  to  a  devisee  under  a  contested  will,  ac- 
companied with  a  declaration,  that  he  (the  tenant)  was 
ready  to  pay  the  rent  to  any  person  who  was  entitled  to 
receive  it,  was  not  a  disavowal  sufficient  to  dispense  with 
the  necessity  of  a  regular  notice. (z) 

When  a  tenant  from  year  to  year  dies,  his  interest  in  the 
land  vests  in  his  personal  representative,  who  will  continue 
to  hold  the  premises  upon  the  same  terms  as  the  original 
tenant,  and  be  entitled  to  the  same  notice  to  quit.(a)  If, 
however,  by  the  terms  of  the  agreement,  no  interest  vests 
in  the  representative,  no  notice  to  quit  can  be  necessary. 
Thus,  where  A.  agreed  to  demise  a  house  to  J3.,  during  the 
joint  lives  of  A.  and  B.,  and  B.  entered  in  pursuance  of  the 
agreement,  and,  before  any  lease  was  executed,  died,  after 
which  jB.'s  executor  took  possession  of  the  house ;  it  was 
held,  that  A.  might  maintain  ejectment  against  the  execu- 
tor without  notice  to  quit,  because  the  death  of  B.  deter- 
mined his  interest,  and  consequently  no  interest  vested  in 
the  executor.  The  court  were  also  of  opinion  that  the  case 
would  have  been  the  same  if  the  lease  had  been  execut- 
ed.^) 


(y)  B.  N.  P.  9rt.  (a)  Doe,  d.  Shore,  r.  Porter,  3  T. 

(?)  Drte,  d.   Wdliama,  v.   Pasquali,    R.  13. 

Peake's  R.  196.  (6)  Doe,  d.  Bromfield,  v.  Smith,  6 

East,  630. 


[7]  A  disclaimer  by  the  tenant  dispenses  with  the  necessity  of  notice  to  quit, 
but  pi -lintiff  must  lay  his  demise  subsequent  to  the  time  of  the  disclaimer. 
Jackton  T.  Wheeler,  6  Johns.  273. 


120  OF  THE  ACTION  OP  EJECTMENT 

In  like  manner  the  situation  of  a  tenant  from  year  to 
year  remains  unaltered,  notwithstanding  the  death  of  the 
landlord,  and  he  will  be  entitled  to  his  regular  notice  to 
quit,  whether  the  land?  descend  to  the  heir  (although  such 
heir  be  a  minor,(c)  )  or  pass  to  the  personal  representative, 
or  devisee  of  the  deceased. 

We  are  next  to  consider  the  persons  by  whom,  and  to 
whom,  the  notice  to  quit  is  to  be  given. 

The  notice  to  quit  must  be  given  by  the  person  interest- 
ed in  the  premises,  or  his  authorized  agent ;  and  such  agent 
must  be  clothed  with  his  power  to  give  the  notice,  at  the 
time  when  the  notice  is  given  ;  a  subsequent  assent  on  the 
part  of  the  landlord  being  not  sufficient  to  establish  by  rela- 
tion a  notice,  given  in  the  first  instance  without  his  author- 
ity. And  this  principle  is  founded  in  reason  and  good 
sense,  for  as  the  tenant  is  to  act  upon  the  notice  at  the 
time  it  is  given  to  him,  it  ought  to  be  such  an  one  as  he 
may  act  upon  with  security ;  and  if  an  authority  by  relation 
were  sufficient,  the  situation  of  the  tenant  must  remain 
doubtful,  until  the  ratification  or  disavowal  of  the  principal, 
and  he  would  thereby  sustain  a  manifest  injustice. (d) 

When  also  two  or  more  persons  are  interested  in  the 
premises,  a  notice  to  quit  given  by  one,  on  behalf  of  him- 
self and  co-tenants,  will  be  valid  only  as  far  as  his  own 
share  is  concerned,(e)  unless  he  was  acting  at  the  time 
under  the  authority  of  the  other  parties  mentioned  in  the 
notice.  And  this  rule  holds,  notwithstanding  that  the  par- 

(c)  Maddon,  d.  Baker,  r.  While,  2        (e)  Doe,  A.  Whayman,  r.  Chapliv. 
T.  R.  159.  3  Taunt.  120. 

(rf)  Right,  d.  Fwher,  r.  Ciittitll,  6 
East,  491 . 


AS  BETWEEN  LANDLORD  AND  TENANT.    121 

ties  are  interested  as  joint  tenants  ;  for  the  rule  of  law,  that 
every  act  of  one  joint  tenant,  which  is  for  the  benefit  of  his 
co-joint  tenant,  shall  bind  him,  does  not  apply,  inasmuch 
as  it  cannot  be  predicated  that  the  determination  of  a  te- 
nancy is  for  his  benefit.(rf)  But  where  several  parties  are 
BO  interested,  as  many  of  them  as  give  notices  may  recover 
their  respective  shares,(e)  although  the  others  do  not  join, 
unless,  indeed,  by  the  conditions  of  the  tenancy,  it  is  render- 
ed necessary  for  all  the  parties  to  concur  in  the  notice  ;  in 
which  case  a  notice  given  by  some  of  the  joint  tenants, 
without  the  junction  or  authority  of  their  companions,  will 
be  altogether  invalid. (d) 

The  steward  of  a  corporation  may  give  a  notice  to  quit, 
without  a  power  under  the  corporation  seal  for  so  doing ; 
and  if  the  corporation  afterwards  bring  an  ejectment  upon 
such  notice,  it  will  not  be  necessary  to  give  any  other  evi- 
dence of  his  authority,  than  that  he  is  steward;  for  the 
corporation,  by  bringing  the  ejectment,  shew  that  they  au- 
thorize and  adopt  the  act  of  their  officer.(/) 

A  receiver  appointed  by  the  Court  of  Chancery,  with  a 
power  to  let  the  lands,  is  an  agent  sufficiently  authorized 
to  give  a  notice  to  quit ;  for  if  he  have  an  authority  to  let, 
he  must  be  taken  to  have  a  power  of  determining  the  let- 
ting, as  he  must  determine  for  how  long  he  will  let.(g) 

Where  a  lease  contained  a  proviso,  that  if  either  of  the 
parties  should  be  desirous  to  determine  it,  in  seven  or  four- 

(rf)  Right,  d.  Fisher,  v.  Cuthcll,  5  (/)  Roe,  d.  Dean  of  Rocftcsttr,  r. 
East,  4i»l.  Pierce,  2  Campb.  96. 

(e)  Doe,  d.  Wluiyman,  r.  Clt'tplin,  (g)  Wilkinson  v.  Colley,  Burr. 
3  1  aunt  120.  2694.  Due,  d.  Martack,  v.  AW,  12 

East,  57.  61. 

16 


122  OF  THE  ACTION  OK  EJKCTMENT 

teen  years,  it  should  be  lawful  for  either  of  them,  his  exe- 
cutors, or  administrators,  so  to  do  upon  twelve  months'  no- 
tice to  the  other  of  them,  his  heirs,  executors,  or  adminis- 
trators, it  was  considered  that  the  words  executors,  or  ad- 
ministrators, were  put  for  representatives  in  general,  and 
that  a  notice  might  be  given  by  an  assignee  of  either  party, 
or  by  the  heir,  or  devisee,  as  well  as  by  the  parties  them- 
selves, their  executors,  or  administrators  ;  because,  other- 
wise, in  case  of  an  assignment,  or  devise,  the  right  of  deter- 
mining the  term  would  be  taken  from  the  persons  interested 
in  it,  and  given  to  a  mere  stranger,  having  no  interest 
therein. (h)  But,  where  the  demise  was  for  twenty-one 
years,  if  both  parties  should  so  long  live,  but  if  either  should 
die  before  the  end  of  the  term,  then  thu  heirs  and  execu- 
tors,^, of  the  parti/  so  dying,  might  determine  the  lease  by 
giving  twelve  months'  notice  to  quit,  it  was  holden,  that 
this  power  extended  only  to  the  representative  of  the  parly 
dying,  and  that  the  lease  could  not  be  determined  by  a  no- 
tice to  quit  given  by  the  lessor,  after  the  lessee's  death,  to 
his  representative. (?) 

When  the  relation  of  landlord  and  tenant  subsists,  diffi- 
culties can  seldom  occur  as  to  the  party  upon  whom  the 
notice  should  be  served.  The  service  should  invariably 
be  upon  the  tenant  of  the  parly  serving  the  notice,  notwith- 
standing a  part,  or  even  the  whole  of  the  premises,  may 
have  been  under-let  by  him. [8]  And  in  a  case  where  the 

(h)  Roe,  d.  Bamford,  v.  Hayky,  12        ({)  Legg,  d.  Scolt,  v.  Benion,  Willes, 
East,  464.  43. 


[8]  A  lessor  is  not  bound  to  look  beyond  his  immediate  lessee,  and  there- 
fore a  notice  to  quit  is  sufficient,  if  served  on  him.  so  long1  as  he  paid  the 
rent,  and  the  lessor  had  nut  recognized  the  sub-lessee  as  tenant.  Jackson  T. 
Bnktr,  10  Johns.  270. 


AS  BETWEEN  LANDLORD  AND  TENANT.          123 

service  was  upon  a  relation  of  the  under-tenant  upon  the 
premises,  Lord  Ellenborough,  C.  J.  ruled  the  service  to  be 
insufficient,  although  the  notice  was  addressed  to  the  ori- 
ginal tenant.^')  The  original  tenant  is  also  liable  to  an 
ejectment,  at  the  expiration  of  the  notice,  for  the  lands  in 
tin-  possession  of  his  under-tenants,  although  he  may,  on 
his  part,  have  given  proper  notices  to  them,  and  delivered 
up  such  parts  of  the  premises  as  were  under  his  own  con- 
troul.(A-) 

Where  a  tenant  from  year  to  year  had  under-let  part  of 
the  premises,  and  then  gave  up  to  his  landlord  the  part  re- 
maining in  his  own  possession,  not  having  received  from 
him  a  notice  to  quit,  or  surrendering  such  part  in  the  name 
of  the  whole,  it  was  held  that  a  notice  to  quit,  from  the 
original  landlord  to  the  sub-lessee,  for  the  part  so  under-let 
was  irregular  ;  and  that  the  sub-lessee  could  not  be  ejected 
without  a  regular  notice  from  his  immediate  landlord.  And 
it  seems,  that  if  the  tenant  had  surrendered  such  part  in  the 
name  of  the  whole,  it  would  not  have  varied  the  case,  be- 
cause the  surrender  of  the  lessee  would  not  destroy  any 
interest,  which  a  stranger  claiming  under  him  had  acquired 
in  the  term  before  such  surrender. 

When  the  premises  are  in  the  possession  of  two,  or  more, 
as  joint  tenants,  or  tenants  in  common,  a  written  notice  to 
quit,  addressed  to  all,  and  served  upon  one  only,  will  be  a 
good  notice  ;(/)  so  also  a  parol  notice  given  to  one  co-ten- 
ant only  will  bind  his  fellow. (m) 

(j)  Doe,  d.  Mitchell,  r  Leri,  M.  T.  (I)  Doe,  d.  Lord  Bradford,  v  Wat- 
1811.  M.  S.  kins,  7  East,  651. 

(it)   Hoc   v.    Wi<r%s,  2  N.   R.  330.         (in)   Doe,  A    Lord    Macartney,  T. 

Pleasant,  d.  Hai/lon,  r.  Benson,  M     Crick,  6  E»p.  liKJ. 
East,  234 


124        OF  THE  ACTION  OF  EJECTMENT 

When  a  corporation  aggregate  is  the  tenant,  the  notice 
should  be  addressed  to  the  corporation,  and  served  upon 
its  officers,  and  a  notice  addressed  to  the  officers  will  not 
be  sufficient.(n) 

With  respect  to  the  mode  of  serving  the  notice,  it  is  in 
all  cases  advisable,  if  possible,  to  deliver  the  same  to  the 
tenant  personally  ;  but  if  personal  service  cannot  be  ef- 
fected, the  notice  should  be  left  at  his  usual  place  of  resi- 
dence, whether  the  same  be  situated  upon  the  demised  pre- 
mises, or  elsewhere. (o) 

It  is,  however,  doubtful,  from  the  judgment  of  Bu//er,  J. 
in  the  case  above  cited,  whether  the  delivery  of  a  notice  to 
quit  at  the  dwelling  house  of  the  tenant  will  be  a  sufficient 
service,  provided  the  person  to  whom  it  is  delivered  should 
swear  upon  the  trial,  that  no  intimation  thereof  had  ever 
been  given  to  the  tenant  in  possession.  It  is  much  to  be 
regretted  that  a  point  of  such  general  importance  to  land- 
lords and  tenants  should  not  be  more  clearly  settled. 

Next  of  the  form  of  the  notice.(/>) 

When  the  landlord  intends  to  enforce  his  claim  to  double 
value,  if  the  tenant  holds  over,(  q)  it  is  necessary  that  the 
notice  to  quit  should  be  in  writing ;  but  for  the  purposes 
of  an  ejectment  a  parol  notice  is  sufficient,  unless  the  notice 
is  required  to  be  in  writing  by  express  agreement  between 


(n)  Doe,  d.  Lord  Carlitle,  v.  Wood-        (p)  Appendix,  Nos.  1,  2,  3 
man,  8  East,  228.  (q)  4  G.  II.  c.  28.  *-  1. 

(o)  Jonu,  d.  Griffiiht,  v.  Marsh,  4 
T.  R.4M. 


A3  BETWEEN  LANDLORD  AND  TENANT.          125 

the  parties. (r)  It  i?,  however,  nevertheless,  the  general 
practice  to  give  written  notices ;  and  it  is  a  precaution 
which  should  always,  when  possible,  be  observed,  as  it 
prevents  mistakes,  and  renders  the  evidence  certain  and 
correct.  It  is  customary  also  to  address  the  notice  to  the 
tenant  in  possession ;  and  it  is,  perhaps,  most  prudent  to 
adhere  to  this  form,  though,  if  proof  can  be  given  that  the 
notice  was  served  personally  upon  him,  it  is  thereby  ren- 
dered unnecessary. (s)  And  where  a  notice  was  addressed 
to  the  tenant  by  a  wrong  Christian  name,  and  the  tenant 
did  not  return  the  notice,  or  object  to  it,  and  there  was 
no  tenant  of  the  name  mentioned  in  the  notice,  it  was  ruled 
at  Nisi  Prius  to  be  sufficient. (t) 

A  subscribing  witness  to  a  notice  to  quit  is  unnecessary ; 
and  it  is  prudent  not  to  have  one,  as  it  may  occasion  diffi- 
culties in  the  proof  of  the  service,  and  cannot  be  of  the 
slightest  advantage  to  the  landlord. 

Care  should  be  taken  that  the  words  of  a  notice  are  clear 
and  decisive,  without  ambiguity,  or  giving  an  alternative 
to  the  tenant ;  for,  although  the  courts  will  reluctantly 
listen  to  objections  of  this  nature,  yet  if  the  notice  be  really 
ambiguous,  or  optional,  it  will  be  sufficient  to  render  it 
invalid,  as  far  at  least  as  the  action  of  ejectment  is  con- 
cerned. 

The  notice,  however,  will  not  be  invalid,  unless  it  cou- 


(r)   Legg,     d.     Scott,   v.    JJenion,        (t)  Doe,  d.  Matthewson,  v.  ll'righl- 
Willes,  43.     Timmiiu  v  Roielinton,  I     man,  4  Esp.  6. 
VV.  Blk.  533    Doe,d.  Ld.  Macartney,        (t)  Dot,  v.  SpilUr,  6  Esp.  70 
r.  Crick,  5  Esp.  196.     Roe,  d.  Dean  of 
Rothuttr,  r.  .Pierce,  2  Cauipb.  iH». 


126       OP  THE  ACTION  OF  EJECTMENT 

tain  a  real  and  bonafide  option,  and  not  merely  an  appa- 
rent one;  for  if  it  appear  clearly,  from  the  words  of  the 
notice,  that  the  landlord  had  no  other  end  in  view,  than 
that  of  turning  out  the  tenant,  it  will  be  deemed  a  notice 
sufficient  to  found  an  ejectment  upon,  notwithstanding  an 
apparent  alternative.  Thus,  the  words,  "  I  desire  you  to 
quit  the  possession  at  Lady-day  next  of  the  premises,  &c. 
in  your  possession,  or  /  shall  insist  upon  double  rent"  have 
been  held  to  contain  no  alternative  ;  because  the  land- 
lord did  not  mean  to  offer  a  new  bargain  thereby,  but  only 
added  the  latter  words  as  an  emphatical  way  of  enforcing 
the  notice,  and  shewing  the  tenant  the  legal  consequences 
of  his  holding  over.  It  was  contended  for  the  tenant,  that 
this  could  not  be  the  construction  of  the  notice,  because 
the  statute  of  4  Geo.  II.  c.  28.  does  not  give  double  the 
rent,  but  double  the  value,  on  holding  over;  but  Lord 
Mansfield,  C.  J.,  was  of  opinion,  that  the  notice,  notwith- 
standing this  variance,  clearly  referred  to  the  statute.  It 
seems,  however,  that  if  the  words  had  been  "  or  else  that 
you  agree  to  pay  double  rent,"  the  notice  would  have  been 
an  alternative  one.(u) 

Where  the  notice  was  to  quit  "  on  the  25th  day  of 
March,  or  6th  day  of  April  next  ensuing,"(u)  and  was 
delivered  before  new  Michaelmas-day,  it  was  held  to  be 
a  good  notice ;  as  being  intended  to  meet  an  holding  com- 
mencing either  at  new,  or  old  Lady-day,  and  not  to  give 
an  alternative. (a?) 


(u)  Doe,  d.  Matthews,  v.  Jackson,  case,  cannot  be  correct. — See   also 

Dong.  175.  Doe,  d.  Spicer,  v.  Lea,  11  East,  312. 

(r)  In  the  printed  report,  this  date  (tc)  Doe,  d.  Matthswwn,  T.  WrigM- 

is  stated  to  be  the  eighth  day  of  April,  man,  4  Esp.  5. 
which,  from  the    reasoning    in   the 


AS  BETWEEN  LANDLORD  AND  TENANT.    127 

Upon  the  same  principle,  the  court  will  not  invalidate  a 
notice,  on  account  of  an  ambiguity  in  the  wording  of  it, 
provided  the  intention  of  the  notice  be  sufficiently  certain. 
Thus,  an  impossible  year  has  been  rejected.  The  notice 
was  given  at  Michaelmas  1795,  to  quit  at  Lady-day,  which 
will  be  in  1 795,  and  was  accompanied,  at  the  time  of  de- 
livery to  the  tenant,  with  a  declaration,  that  as  he  would 
not  agree  to  the  terms  proposed  for  a  new  lease,  he  must 
quit  next  Lady-day,  and  under  these  circumstances  the 
notice  was  considered  to  be  sufficiently  certain  :(i)  the 
court  also  seemed  to  be  of  opinion,  that  the  notice  would 
have  been  good  without  the  accompanying  declaration,  the 
words  "  which  will  6e,"  manifestly  referring  to  the  then 
next  Lady-day. — In  like  manner,  where  there  was  a  mis- 
description  of  the  premises  in  the  notice,  which  could 
lead  to  no  mistake,  the  house  being  described  therein  as 
the  Watermarks  Arms,  instead  of  the  Bricklayers  Arms, 
no  sign  called  the  Waterman's  Arms  being  in  the  parish, 
the  notice  was  deemed  a  valid  one.(z/) 

When  a  notice  is  given  to  quit  at  Michaelmas,  or 
Lady-day  generally,  it  will  not  be  deemed  an  ambiguous 
notice,  but  considered  prima  facie,  as  expiring  at  new 
Michaelmas,  or  new  Lady-day,  open,  however,  to  explana- 
tion, that  old  Michaelmas,  or  old  Lady-day,  was  intended. 
And  if  it  appear,  that  the  customary  holdings  where  the 
the  lands  lie,  are  from  old  Michaelmas,  or  Lady-day,  or 
even  that  in  point  of  fact,  the  tenant  entered  at  old  Mi- 
chaelmas, or  Lady-day,  although  no  such  custom  exist, 
such  a  notice  will  be  binding  upon  him.(r) 

(j)  Doe,  d.  Duke  of  Bedford,  v.  (e)  Furley,  d.  Mayor  of  Canlerbu- 

Kifrlitley,  7  T.  R.  63.  ry,   v.    H'owt,    1    Esp.   1U7.     Doe,  d. 

(y)  Doe,  d.  Cox,  v. ,4  Esp.  Hinde,  v.  Vine,  2  Campb.  256. 

IS*. 


128  OF  THE  ACTION  OF  EJECTMENT 

The  notice  must  include  all  the  premises  held  under  the 
same  demise  ;  for  a  landlord  cannot  determine  the  tenancy 
as  to  part  of  the  things  demised,  and  continue  it  as  to  the 
residue.  But  where  the  demise  was  of  land  and  tithes,  and 
the  notice  was  to  quit  possession  of  "all  that  messuage,  te- 
nement, or  dwelling-house,  farm-lands,  and  premises,  with 
the  appurtenances,  which  you  rent  of  me,"  it  was  ruled  at 
Nisi  Prius  that  this  notice  was  sufficient  to  include  the 
tithes ;  for  the  tithes  being  held  along  with  the  farm,  the 
notice  must  have  been  understood  by  both  parties  to  apply 
to  both.(fl) 

Fourthly,  Of  the  time  when  the  notice  should  expire. 

Before,  however,  we  enter  upon  this  subject,  it  may  be 
useful  to  observe,  that  certain  demises,  which  have  the  ap- 
pearance of  tenancies  from  year  to  year  only,  are  consider- 
ed by  the  courts  as  conveying  to  the  tenant  an  indefeasible 
interest  for  a  certain  time,  though  afterwards  liable  to  be 
determined  by  a  notice  to  quit. 

Thus,  a  demise  "  not  for  one  year  only,  but  from  year  to 
year,"  has  been  held  to  constitute  a  tenancy  for  two  years 
at  least,  and  not  determinable  by  a  notice  to  quit  at  the  ex- 
piration of  the  first  year.(6)  The  same  interpretation  has 
also  been  given  to  a  demise  "  for  a  year,  and  afterwards 
from  year  to  year  ;"(c)  though  where  the  demise  was  "  for 
twelve  months  certain,  and  six  months'  notice  afterwards  ;" 
it  was  held  at  Nisi  Prius,  that  the  tenancy  might  be  deter- 
mined at  the  expiration  of  the  first  twelve  months. (rf) 

(a)  Doe,  d.  Morgan,  v.  Church,  3  (c)  Birch  v.  Wright,  I  T.  R.  378. 

Campb.  71.  80.  and  the  cases  there  cited. 

(6)  Denn,  d.  Jacklin,  v.  Curirighi,  (d)  Thompson  v.  Maberly,  2, 

1  East,  31.  Campb.  673. 


AS   BETWEEN    LANDLORD  AND  TENANT.  129 

Where  the  demise  was  to  hold  for  three,  six,  or  nine 
years,  generally,  without  any  stipulation  as  to  the  manner 
in  which,  or  the  party  hy  whom,  the  tenancy  might  be  de- 
termined at  the  end  of  the  third,  or  sixth  year,  the  tenancy 
was  held  to  be  dctenninable,  at  the  two  earlier  periods,  at 
the  will  of  the  tenant  only,  and  by  a  regular  notice  to  quit : 
and  that,  as  against  the  landlord,  the  demise  operated  as 
an  indefeasible  one  for  nine  years. (e)  . 

If  the  produce  of  the  demised  lands  require  two  years  to 
come  to  perfection,  as  if  it  be  liquorice,  madder,  &c.  a 
general  holding  will,  it  seems,  enure  as  a  tenancy  from  two 
years  to  two  years,  and  cannot  be  determined  by  a  notice 
to  quit  at  the  end  of  the  first,  or  third  ycar.(y)  And  it 
was  observed  by  De  Grey,  C.  J.  in  his  judgment,  that  it 
might  deserve  to  be  considered  whether,  if  required  by  the 
nature  of  the  soil,  or  the  course  of  husbandry,  a  general 
holding  will  not  always  enure  as  a  tenancy  for  such  period, 
as  may  be  necessary  to  carry  the  land  through  its  regular 
course  of  cultivation,  instead  of  as  a  tenancy  from  year  to 
year  •,  but  this  doctrine  seems  very  doubtful. 

It  has  before  been  stated  generally,  that,  by  the  com- 
mon law,  the  notice  necessary  to  be  given  to  a  tenant,  is  a 
notice  for  half  a  year,  expiring  at  the  end  of  the  current 
vear  of  his  tenancy;  and  that  a  notice  expiring  at  any 
other  period  will  not  be  sufficient. (g)  This  notice  is  fre- 
quently spoken  of  in  the  books,  as  a  six  months'*  notice  ;  and 
(he  distinction  seems  to  be,  that  when  the  tenancy  expires 
at  any  of  the  usual  feasts,  as  Michaelmas,  Christmas,  Lady- 
day,  or  Midsummer,  the  notice  must  be  given  prior  to,  or 

(e)  Dcnn  v.   Spurrier,  3  B.  &  P.         (/)  Roe  v.  Lett,  Black    1171. 
399.  (g)  Ante,  103. 

17 


130  OF  THE  ACTION  OF  EJECTMENT 

upon,  the  corresponding  feast  happening  in  the  middle  of 
the  year  of  the  tenancy  ;(A)  whilst,  if  it  expire  at  any  other 
period  of  the  year,  the  notice  must  be  given  six  calendar 
months  previous  to  such  expiration. 

The  notice,  when  a  tenancy  commences  at  any  of  the 
usual  feasts,  may  be  given  to  quit  at  the  end  of  half  a  year, 
or  of  six  months  from  the  date  of  the  corresponding  feast  in 
the  middle  of  the  year,  without  stating  the  day  when  the 
tenant  is  to  quit,  although  the  intermediate  time  be  not  ex- 
actly half  a  year,  or  six  months,  from  feast  to  feast  being 
the  usual  half  yearly  computation.  And,  indeed,  in  a  case 
where  the  notice  was,  to  quit  "  on  or  about  the  expiration 
of  six  calendar  months  from  the  29th  of  September,"  (the 
tenancy  commencing  March  25,)  the  court  ruled  the  word 
calendar  to  be  surplusage,  and  held  the  notice  good.(i) 

It  was  once  contended,  that  the  principle,  that  a  notice  to 
quit  must  expire  at  the  end  of  the  year  of  the  tenancy,  did 
not  extend  to  houses  as  well  as  lands  ;  and  that  in  cases 
where  houses  alone  were  concerned,  six  months'  notice,  at 
any  period  of  the  year,  would  be  sufficient ;  but  the  court 
considered  that  the  same  inconvenience  might  arise  in  the 
one  case  as  in  the  other,  since  the  value  of  houses  varies 
considerably  at  different  periods  of  the  year  ;  and  therefore 
held  that  the  tenant  of  a  house  was  entitled  to  the  same  pri- 

(h)  In  a  report  of  a  MS.  case  iu  J.  Heath's  decision,  since  the  princi- 

Esp.  N.   P.  460.  it  is  said,  that  a  no-  pie  laid  down  in  the  report  is  in  oppo- 

tice  givrn  on  the  30th  of  September,  sition  to  every   authority   upon   the 

being  the  day  after  Michaelmas-day,  subject.    Probably  the  tenant  entered 

to  quit  at   Lady -day  following,  was  at   old     Lady-day. Vide    Right   v. 

ruled  by  Heath,  J.   to  be  a  sufficient  Darby,  1  T.  R.  169.   et  ante,  127. 
notice.     Some  particular  circumstan-         (i)  Howard  v.  IPemsley,  6  Esp.  53. 

ces,  not  noticed  by  the  reporter,  must,  The  marginal  note  in   the   report  of 

it  is  conceived,  hare  occasioned  Mr.  this  case  is  incorrect. 


AS  BETWEEN  LANDLORD  AND  TENANT.          131 

vileges,  with  respect  to  the  notice  to  quit,  as  the  occupier 
of  lanA.(j) 

It  should,  however,  be  observed,  that  this  rule  extends, 
with  respect  to  houses,  to  those  cases  only  in  which  the  te- 
nancy enures  as  a  tenancy  from  year  to  year  ;  and  that  the 
notice  required  will  refer  to  the  original  letting,  and  be  re- 
gulated by  the  local  custom  of  the  district  in  which  the 
house  is  situated,  whenever  it  happens  that  a  shorter  term 
than  twelve  months  is  intended  to  be  created  by  the  letting, 
although  no  particular  period  be  mentioned.  This  chiefly 
happens  in  the  case  of  lodgings  ;  and  the  custom,  for  the 
most  part,  requires  the  same  space  of  time  for  the  notice, 
as  the  period  for  which  the  lodgings  were  originally  taken ; 
as  a  week's  notice  when  taken  by  the  week,  a  month's  when 
taken  by  the  month,  and  so  forth. (A:) 

When,  also,  the  custom  of  the  country  where  the  pre- 
mises are  situated,  requires,  or  allows,  a  notice  for  a  longer, 
or  shorter  period,  than  half  a  year  (as,  for  instance,  the 
custom  of  London,  by  which  a  tenant,  under  the  yearly 
rent  of  40s.  is  entitled  to  a  quarter's  notice  only,)  (/)  the 
custom  will  be  admitted  by  the  courts  ;(m)  but  such  cus- 
tom must  be  strictly  proved,  and  the  witnesses  must  not 
speak  to  opinion,  butfacts.(n)  The  parties  may  also,  by 
special  agreement,  vary  the  time  of  the  duration  of  the 
notice  ;  but  the  notice  must,  notwithstanding  where  the 
letting  is  from  year  to  year,  expire  with  the  year  of  the 
tenancy,  unless  the  agreement  also  provides  some  other 

(/)  Right  v.  Darby,    I  T.  B.  159.        (0  Tyleyv.  Seed,  Skin.  649. 
Doe,  d.    Browne,   v.    Wilkinson,  Co.         (m)  Roe,  d.  Brown,  v     Wilkinson, 

Lilt.  270  (b),  n..l.  Co.  Lilt.  270(6),  n.  1. 

(k)  Doe,  d.  Parry,  v.  Haztll,  1  Esp.         (n)    Rot,    d.   Henderson,  v.   Char. 

94.  nock,  Peake  N.  P.  C.  4. 


J32        OF  THE  ACTION  OF  EJECTMENT 

period  for  its  expiration. (o)  Where,  however,  the  terms 
of  the  agreement  are  not  intended  to  create  a  tenancy 
from  year  to  year,  determinable  at  a  quarter's  notice,  but 
to  empower  the  parties  to  put  an  end  to  the  tenancy  at 
other  periods  of  the  year,  as  well  as  at  its  termination, 
the  courts  will  give  effect  to  it.  Thus,  a  demise  for  one 
year  only,  and  then  to  continue  tenant  afterwards,  and 
quit  at  a  quarter's  notice  ;(o)  and  a  demise,  where  it  wa« 
agreed  "  that  the  tenant  was  always  to  be  subject  to  quit 
at  three  months'  notice, '""(/>)  have  been  held  to  be  demises 
determinable  at  the  end,  although  not  in  the  middle  of  any 
quarter.  But  a  quarterly  reservation  of  rent  is  not  a 
circumstance  from  which  an  agreement  to  dispense  with 
a  regular  notice  for  six  months  is  to  be  inferred ;  although, 
where  the  landlord  accepted  in  such  case  a  three  months' 
notice  from  his  tenant,  without  expressing  either  his 
assent  to,  or  dissent  from,  such  notice,  it  was  ruled  at 
Nisi  Prius  to  be  presumptive  evidence  of  an  agreement, 
that  three  months'  notice  should  be  sufficient.(y) 

The  notice  may  be  given  to  quit  upon  a  particular 
day,  or  in  general  terms  at  the  end  and  expiration  of 
the  current  year  of  the  tenancy,  which  shall  expire  next 
after  the  end  of  one  half  year  from  the  service  of  the 
notice. (r)  The  latter  form  should  always  be  used  when 
the  landlord  is  ignorant  of  the  period  when  the  tenancy 
commenced,  and  is  unable  to  serve  the  tenant  personally ; 
and,  it  is  also  the  preferable  form,  when  the  commence- 
ment of  the  tenancy  is  known,  as  it  provides  against  any 
misapprehension  of  the  exact  day  when  the  tenant  en- 


(o)  Doe,  d.  Pilcfier,  v.  Donovan,  I         (7)  Shirley  v.  JVeitman,  1  Esp.  26«i. 
Taunt.  155.  (r)  Appendix,  No.  1.  2,  3. 

(p)  Kemp  v.  Derrelt,  3  Cainpb.  511. 


AS  BETWEEN  LANDLORD  AND  TENANT.          1  3Sl 

icrcd.  If  a  particular  day  be  mentioned  in  the  jiotice. 
it  must  be  the  day  of  the  commencement,  and  not  of 
the  conclusion  of  the  tenancy ;  for  the  tenant  cannot  be 
compelled  to  quit,  whilst  his  right  of  possession  continues, 
and  this  right  is  not  determined,  until  the  year  is  fully 
completed.  It  must  also  be  the  exact  day  of  such  com- 
mencement. The  next,  or  any  subsequent  day,  will  not 
be  sullicicnt.(s) 

The  time,  when  a  tenancy  from  year  to  year  com- 
mences and  expires,  takes  its  date,  in  the  absence  of 
all  other  circumstances,  from  the  time  when  the  tenant 
actually  enters  upon  the  demised  premises ;(/)  but  this 
general  rule  may  be  varied,  both  as  to  the  commence- 
ment and  expiration  of  the  tenancy,  either  by  express 
agreement  or  legal  inference. 

When  a  person  is  let  into  possession  as  a  yearly  te- 
nant, and  afterwards  takes  a  lease  of  the  premises,  and 
continues  to  hold  the  land  after  the  lease  has  expired, 
the  time  of  the  expiration  of  the  tenancy,  created  by 
?uch  holding  over,  will  be  regulated  by  the  terms  of  the 
lease,. and  not  by  the  time  of  the  original  entry.  Thus, 
if  a  man  enters  at  Lady-day,  continues  tenant  for  one 
or  more  years,  then  accepts  a  lease  for  a  certain  term 
expiring  at  Michaelmas,  and  afterwards  holds  over  and 
pays  rent,  the  notice  must  be  given  to  quit  at  Mi- 
chaelmas, and  not  at  Lady-day. (u)  And  the  rule  extends 
to  the  assignees  of  the  original  lessee,  and  their  assigns. 
Whatever  may  be  the  period  of  the  year  when  they  enter 
upon  the  demised  premises,  the  time  of  the  expiration 

(*)  Doe,  d.  Spicer,  v.  Lea,  11  Enst,  (it)  Dnc,  <\.  S/n'rer.  v.  />«.  11  East, 
312.  312. 

(/;  Kemp  v.  Derrett,  3  Campb.oll. 


134       OF  THE  ACTION  OF  EJECTMENT 

of  their  tenancies  will  be  the  same  as  if  the  original  les- 
see had  continued  in  possession  ;  and  it  seems  immate- 
rial whether  they  come  into  possession  before  or  after 
the  expiration  of  the  lease.(r) 

In  like  manner,  when  a  remainder-man  receives  rent 
from  a  person  in  possession  under  a  lease,  granted  by 
the  tenant  for  life,  but  void  against  the  remainder-man, 
and  thereby  creates  a  tenancy  from  year  to  year,  the 
time  at  which  a  notice  to  quit,  given  by  such  remain- 
der-man, must  expire,  will  be  regulated  by  the  terms  of 
the  lease,  and  not  by  the  time  of  the  death  of  the  te- 
nant for  life.(zo)  As,  if  the  lease  be  for  a  certain  num- 
ber of  years,  to  commence  on  the  5th  of  April,  and  the 
tenant  for  life  die  on  the  30th  of  September,  the  proper 
period  for  the  expiration  of  the  notice  will  be  the  5th 
of  April. 

The  principle  is  the  same  if  the  tenant  hold  under  a 
parole  lease,  void  by  the  statute  of  frauds.  As,  where 
there  was  a  verbal  agreement  to  hold  for  seven  years, 
and  the  tenant  was  to  enter  at  Lady-day,  and  quit  at 
Candlemas,  it  was  held  that  the  lease,  although  void  as 
to  its  duration,  nevertheless  regulated  the  terms  of  the 
tenancy  in  other  respects,  and  that  a  notice  to  quit  must 
expire  at  Candlemas,  and  not  at  Lady-day.(oc) 

It  may  be  recollected  from  these  cases,  that  if  there  be 
a  lease  for  years,  commencing  on  one  day,  and  terminat- 

(c)  Doe,  d.  Ccutleton,  v.  Samuel,  5  1  T.  R.  159.  Roe,  d.  Jordan,  v.  Ward, 
Esp.  173.  1  H.  Blk.  97.  Anie,  107,  108. 

(IP)  Doe,  d.  Colliw,  v.  Welter,  7  T.  (x)  Doe,  d.  Rigge,  v.  Bell,  5  T.  R. 
R.  478.  Right,  d.  Flower,  v.  Darby,  471.  Doe,  d.  Peacock,  v.  Rajfan,  6 

Esp.  4. 


AS  BETWEEN  LANDLORD  AND  TENANT.          135 

ing  on  another,  as  for  example,  commencing  at  Lady-day, 
and  terminating  at  Michaelmas,  a  tenancy  created  by  the 
landlord's  receipt  of  rent  after  the  expiration  of  the  lease, 
will  be  held  to  commence  at  Michaelmas,  and  to  require 
half  a  year's  notice  from  Lady-day. 

No  new  tenancy  is  created  by  a  mere  agreement  be- 
tween landlord  and  tenant,  for  an  increase  of  rent  in  the 
middle  of  the  year  of  a  tenancy ;  but  a  notice  to  quit,  given 
after  the  receipt  of  the  increased  rent,  must  expire  at  the 
time  when  the  tenant  originally  entered.(^) 

When  a  tenant  took  possession  in  the  middle  of  a  quar- 
ter, paid  rent  from  the  time  of  his  coming  in  up  to  the  next 
quarter  day,  (Christmas,)  and  then  paid  his  rent  half  yearly 
at  Midsummer  and  Christmas,  it  was  ruled  at  Nisi  Prius, 
that  the  tenancy  commenced  from  Christmas,  and  not  from 
the  preceding  half  quarter. (2)  But  where  the  tenant  en- 
tered in  the  middle  of  a  quarter,  upon  an  agreement  "  to 
pay  rent  quarterly,  and  for  the  half  quarter,"  it  was  left  to 
the  jury,  whether  the  party  was  tenant  from  the  quarter 
day,  prior  to  the  time  when  he  entered,  or  from  the  suc- 
ceeding quarter  day  ;  and  under  the  direction  of  Lord  El- 
lenborough,C.  J.  the  jury  found  that  the  tenancy  commen- 
ced with  the  preceding  quarter,  (a) 

When  the  demise  is  by  parol,  and  in  general  terms  to 
hold  from  feast  to  feast,  as  from  Michaelmas  to  Michael- 
mas, it  will  be  a  holding  from  such  feast  according  to  the 


(.V)  Dot,  d.   Bedford,  v.  Kendrick,        (a)  Doe,  d.  Wadmore,  \.  Stlicyn. 
Warwick  Sum.  Ass.  1810.— MS.  H.  T.  47  Geo.  Ill  —MS. 

(>)  Doe,  d.  llolcomb,  v.  Johnson,  6 
F.»p.  10. 


136  OK  THE  ACTION  OF  EJECTMENT 

new  shjle  ;  unless,  by  the  custom  of  the  country  where  the 
lands  lie,  (which  custom  may  be  proved  by  parol  testi- 
mony,) such  tenancies  commence  according  to  the  old 
style.(b]  If,  however,  the  demise  be  by  deed  to  hold  from 
any  particular  feast,  as  "from  the  feast  of  St.  MichaePs,  4-c." 
the  holding  must  be  taken  to  be  according  to  the  new  style, 
notwithstanding  the  custom ;  and  thrs  rule  prevails,  al- 
though the  tenancy  be  created  by  a  holding  over  after  the 
expiration  of  the  lease,  and  the  original  entry  was  accord- 
ing to  the  old  style. (c) 

Upon  the  same  principle,  a  notice  to  quit  at  Michaelmas 
generally,  prima  facie  means  new  Michaelmas ;  but  if  the 
tenant  entered  at  old  Michaelmas,  it  will  be  construed  to 
mean  old  Michaelmas. (d) 

A  tenant  sometimes  enters  upon  different  parts  of  the 
land  at  different  periods  of  the  year,  although  all  are  con- 
tained in  one  demise  ;  and  the  notice  to  quit  must  then  be 
given  with  reference  to  the  substantial  time  of  entry,  that 
is  to  say,  with  reference  to  the  time  of  entry  on  the  substan- 
tial part  of  the  premises  demised  ;  no  notice  being  taken  of 
the  time  of  entry  on  the  other  parts,  which  are  auxiliaries 
only  ;  though  the  tenant  will  be  obliged  to  quit  them  at  the 
respective  times  of  entry  thereon. (e) 

This  substantial  time  of  entry,  it  has  been  contended, 
must  be  determined  by  the  times  when  the  rent  is  pay- 
able ;  but  it  is  holden  to  depend,  either  upon  the  general 


(b)  Furley,  d.  Mayor  of  Canterbury,  (d)    Doe,    d.    Hinde,   v.   Vince,   2 
v.  Wood,  1  Esp.  198.  Run.  Eject.  112.  Campb.  256. 

(c)  Doe,  d.  Spicer,  v.  Lea,  11  East,  (e)  Doe,  d.  Strickland,  v.  Spence,  6 
312.  East,  120 


AS  BETWEEN  LANDLORD  AND  TENANT.          137 

custom  of  the  country  where  the  lands  lie,  or  upon  the  re- 
lative value  and  importance  of  the  different  parts  of  the 
demised  premises  ;  and  of  these  facts  it  is  the  province  of 
the  jury  to  determine. 

As  few  decisions  are  to  be  found  on  these  points,  it  will 
be  useful  to  give  a  concise  statement  of  them. 

Where  the  landlord  agreed  to  let  the  defendant  a  farm,  to 
hold  the  arable  land  from  the  1 3th  of  February  then  next, 
the  pasture  from  the  5th  of  April,  and  the  meadow  from  the 
12th  of  May,  at  a  yearly  rent  payable  at  old  Michaelmas 
and  old  Lady-day,  the  first  payment  to  be  made  at  Michael- 
mas then  next,  it  was  held  to  be  a  tenancy  from  old-Lady- 
day  to  old  Lady-day  ;  because  the  custom  of  most  countries 
would  have  required  the  tenant  to  have  quitted  the  arable 
and  meadow  lands  on  the  13th  of  February,  and  12th  of 
May,  without  any  special  agreement,  and  a  notice  to  quit 
at  old  Lady-day,  delivered  before  old  Michaelmas,  was 
held  sufficient^/) 

So,  also,  upon  a  demise  of  the  same  nature,  namely, 
that  the  tenant  should  enter  upon  the  arable  land  at  Can- 
dlemas, and  the  house  and  other  premises  at  Lady-day,  to 
which  was  added  a  proviso,  that  the  tenant  should  quit  the 
premises  "  according  to  the  times  of  entry  as  aforesaid,"  it 
was  held  by  the  court,  that  the  proviso  made  no  alteration 
in  the  tenancy,  so  as  to  require  a  notice  six  months  before 
Candlemas,  because  it  merely  expressed  what  the  law 
would  otherwise  have  implied ;  that  the  substantial  time  of 
entry  was  at  Lady-day,  with  a  privilege  to  the  tenant  on 
the  one  hand  to  enter  on  the  arable  land  before  that  period. 

(/)  Dot,  d.  Daggtt,  v.  Snowdon,  2  W-Blk.  1224 
19 


138       OF  TUB  ACTION  OF  EJECTMENT 

for  the  purpose  of  preparing  it,  and  on  the  other  hand  a  sti- 
pulation by  him,  when  he  quitted  the  farm,  to  allow  the 
same  privilege  to  the  incoming  tenant ;  and,  therefore,  that 
a  notice  to  qait,  given  six  months  previous  to  Lady-day,  al- 
though less  than  six  months  before  Candlemas,  was  suffi- 
cient.^) 

Where  the  premises  contained  in  the  demise  consisted  of 
dwelling-houses,  and  other  buildings,  used  for  the  purpose 
of  carrying  on  a  manufacture,  a  few  acres  of  meadow,  and 
pasture  land,  and  bleaching-grounds,  together  with  all  wa- 
ter courses,  &c.  and  the  tenant  held  under  a  written  agree- 
ment for  a  lease,  to  commence  as  to  the  meadow  ground 
from  the  25th  of  December  then  last,  as  to  the  pasture  from 
the  25th  of  March  then  next,  and  as  to  the  houses,  mills, 
and  all  the  rest  of  the  premises,  from  the  1st  of  May,  the  rent 
payable  on  the  day  of  Pentecost  and  Martinmas,  the  Court 
held,  that  the  substantial  time  of  entry  was  the  1st  of  May, 
inasmuch  as  the  substantial  subject  of  the  demise  was  the 
house  and  buildings  for  the  purpose  of  the  manufacture,  to 
which  every  thing  else  in  the  demise  was  merely  auxilia- 
ry.(A) 

Where  a  house  and  thirteen  acres  of  land,  were  demised 
for  eleven  years,  to  hold  the  lands  from  the  2d  of  Febru- 
ary, and  the  house  and  other  premises  from  the  first  of  May, 
at  the  yearly  rent  of  24/.  payable  at  Michaelmas  and  La- 
dy-day, the  jury  found  the  land  to  be  the  principal  subject 
of  the  demise  ;  and  the  plaintiff  was  nonsuited  on  account 
of  the  notice  to  quit  not  having  been  given  six  months  pre- 
vious to  the  2d  of  February.  The  Court  was  afterwards 


(g)  Doe,  d.  Strickland,  v.  Spence,  6        (h)  Doe,  d.  Jj>rd  Bradford,  v.  Wal- 
Bast,  120.  kins,  7  East,  651. 


AS  BETWEEN  LANDLORD  AND  TENANT.          139 

moved  to  set  aside  the  nonsuit,  on  the  ground  that  the  house 
was  the  principal  part  of  the  demise  5  (being  situated  near  a 
borough;)  or,  at  all  events,  that  the  relative  value  and  im- 
portance of  the  house  and  lands  were  so  nearly  balanced, 
it  was  immaterial  to  which  the  notice  referred ;  but  the 
Court  refused  the  rule,  saying,  it  was  for  the  jury  to  decide 
which  was  the  principal,  and  which  the  accessary  part  of 
the  demise. (i) 

Lastly,  of  the  acts  by  which  a  regular  notice  to  quit  may 
be  waived. 

The  acceptance  of  rent,  accruing  subsequently  to  the 
expiration  of  the  notice,  fs  the  most  usual  means  by  which 
a  waiver  of  it  is  produced  ;  but  the  acceptance  of  such  rent 
is  not  of  itself  a  waiver  of  the  notice,  but  matter  of  evi- 
dence only  to  be  left  to  the  jury,  to  determine  with  what 
views,  and  under  what  circumstances,  the  rent  is  paid  and 
received. 

If  the  money  be  taken  nomine  patnce,  as  a  compensation 
for  the  trespass,  or  with  an  express  declaration  that  the  no- 
tice is  not  thereby  intended  to  be  waived,  or  if  there  be 
any  fraud  or  contrivance  on  the  part  of  the  tenant  in  pay- 
ing it,  or  if  the  payment  be  accompanied  by  other  circum- 
stances which  may  induce  an  opinion,  that  the  landlord  did 
not  intend  to  continue  the  tenancy,  no  waiver  will  be  pro- 
duced by  the  acceptance.  The  rent  must  be  pa'd  and  re- 
ceived as  renf,  that  is  to  say,  it  must  be  so  paid  and  receiv- 
ed, as  to  satisfy  the  jury  of  an  intention  to  continue  the  te- 
nancy, or  the  notice  will  remain  in  force.  Thus,  where 
the  landlord  brought  an  ejectment  immediately  upon 'the 

(»)  Dot,  d.  Meapy,  v.  Howard,  \  1  East,  498. 


140  OF  THE  ACTION  OF  EJECTMENT 

expiration  of  the  notice,  and  after  the  appearance  of  the 
truant  in  the  action,  received  from  him  a  quarter's  rent, 
accruing  subsequently  to  the  day  when  the  notice  expired, 
but  nevertheless  continued  his  action,  the  Court  were  of 
opinion  (  upon  a  motion  for  a  new  trial,  after  a  verdict  for 
the  defendant,)  that  from  the  continuance  of  the  suit  by 
the  landlord,  after  the  acceptance  of  the  rent,  a  fair  infe- 
ence  might  be  drawn,  that  he  did  not  mean  to  waive  his  no- 
tice ;  and  as  that  point  had  not  been  left  for  the  considera- 
tion of  the  jury,  (who  had  been  directed  at  the  trial  to  find 
for  the  defendant,  upon  the  simple  fact  of  the  quarter's  rent 
having  been  paid  and  received,)  the  motion  for  the  new 
trial  was  granted. (j)  So,  also,  where  the  rent  was  usually 
paid  at  a  banker's,  and  the  banker,  in  the  common  routine 
of  business,  received  a  quarter's  rent  from  the  tenant  after 
the  expiration  of  the  notice,  no  waiver  of  the  notice  was 
thereby  created. (A;)  But  where  the  notice  expired  at 
Michaelmas,  1 792,  and  the  landlord  accepted  rent  due  at 
l^ady-day,  1 793,  and  did  not  bring  his  ejectment  until  after 
such  acceptance,  nor  try  the  cause  until  1 795,  the  jury 
held  that  the  notice  was  waived. (/) 

The  notice  may  also  be  waived  by  other  acts  of  the 
landlord ;  but  they  are  all  open  to  explanation,  and  the 
particular  act  will,  or  will  not,  be  a  waiver  of  the  notice, 
according  to  the  circumstances  which  attend  it.  Thus,  a 

o 

second  notice  to  quit,  given  after  the  expiration. of  the  first 
notice,  but  also  after  the  commencement  of  an  ejectment, 
in  which  the  landlord  continued  to  proceed,  notwithstand- 
ing his  second  notice,  was  holden  to  be  no  waiver  of  the 

(ji)  Doe,  d.  Clwny,  v.  Batten,  Cowp.  (/)  Goodright,  d.  Charier,  v.  Cord- 
243.  wen/.  6  T.  R.  219. 

(k)   Dot,  d.   AA,    v.    Calcert,    2 
Campb.  387. 


AS  BETWEEN  LANDLORD  AND  TENANT.          141 

notice  originally  given;  because,  it  was  impossible  for  the 
tenant  to  suppose,  that  the  landlord  meant  to  waive  a 
notice  upon  the  foundation  of  which  he  was  proceeding  to 
turn  him  out  of  his  fann.(m)  Where,  also,  after  the  ex- 
piration of  a  regular  notice  to  quit,  the  landlord  gave  a 
second  notice  in  these  words : — "  1  do  hereby  desire  you 
to  quit  the  premises  which  you  now  hold  of  me,  within 
fourteen  days  from  this  date,  or  I  shall  insist  upon  double 
value,"  it  was  ruled  by  Lord  Ellcnborough,  C.  J.  at  Nisi 
Prius,  that  the  second  notice  could  not  be  intended,  or 
understood  to  be  intended,  as  a  waiver  of  the  first,  or  even 
as  an  acknowledgment  of  a  subsisting  tenancy  at  will  hav- 
ing for  its  object  merely  the  recovery  of  double  value  ; 
and  the  lessor  of  the  plaintiff  recovered  upon  a  demise  an- 
terior to  the  expiration  of  the  second  notice. (n)  So,  also, 
where  a  notice  was  given  "  to  quit  the  premises  which  you 
hold  under  me,  your  term  therein  having  long  since  expired," 
the  Court  considered  the  paper  as  a  mere  demand  of  pos- 
session, and  not  as  a  recognition  of  a  subsisting  tenancy.(o) 

But  where  the  defendant  was  lessee  by  assignment  of 
certain  tithes,  under  an  agreement,  which  only  operated 
to  create  a  tenancy  from  year  to  year,  and  the  impropri- 
ator,  in  March,  1810,  (some  days  after  the  assignment,) 
gave  the  original  lessee  a  notice  to  quit  at  the  Michaelmas 
following,  and  afterwards,  in  March,  1811,  gave  the  as- 
signee a  notice  tc-  quit  at  the  then  next  Michaelmas,  the 
Court  were  clearly  of  opinion,  that  such  second  notice  was 
a  waiver  as  to  the  assignee  of  the  former  notice  given  to 
the  original  lessee.  And,  in  answer  to  an  argument  in 

(m)  Doe,d.  Williams,  v.  Humphrey*,  (o)  Doe,  d.  OvdsclJ,  v.  Iiiglis,  <* 
'2  East,  236.  Taunt.  64. 

*(n)   Doe,  d.  Difby,  v.   Steel,  MS. 
»nd  3  Campb.  115. 


142       OF  THE  ACTION  OF  EJECTMENT 

support  of  the  efficacy  of  the  first  notice,  that  the  original 
tenancy  having  expired  at  Michaelmas,  1810,  could  not  be 
setup  again  hy  another  notice  to  the  defendant  in  1811, 
inasmuch  as  the  giving  of  a  person  notice  to  quit  does  not 
operate  to  create  a  tenancy  in  him,  the  Court  observed, 
"  It  does  not  necessarily  do  so,  but  it  is  generally  con- 
sidered as  an  acknowledgment  of  a  subsisting  tenancy ; 
and  if  the  party  obeys  the  notice,  how  can  he  be  deemed 
a  trespasser  on  account  of  a  prior  notice  to  another  per- 
son ?  Nothing  appears  to  shew,  that  the  defendant  had 
knowledge  of  any  other  notice  to  quit  than  the  one  which 
was  served  upon  him  ;"  and  Bay  ley,  J.  added,  "  the  second 
notice  gives  the  defendant  to  understand,  that  if  he  quits  at 
Michaelmas,  1811,  he  will  not  be  deemed  a  trespasser. (p) 

It  may  be  collected  from  this  case,  that  if  a  tenant, 
having  underlet  the  premises,  receive  from  his  landlord  a 
notice  to  quit,  and  the  landlord  afterwards  give  to  the  un- 
der-tenant a  notice  to  quit,  expiring  at  a  subsequent  pe- 
riod,^) he  is  precluded  from  recovering  in  an  ejectment 
against  such  under-tenant,  upon  a  demise  anterior  to  the 
time  of  the  expiration  of  the  notice  so  given  by  him  to 
the  under-tenant.  And  if,  after  the  expiration  of  a  re- 
gular notice,  the  landlord  should  give  to  the  same  tenant 
a  second  regular  notice,  in  the  usual  form,  to  quit  at  the 
termination  of  the  next,  or  any  subsequent  year  of  the 
tenancy,  without  referring  therein  to  auy  claim  for  double 
value,  and  without  having  taken  any  steps,  in  the  interme- 
diate time,  to  enforce  the  first  notice,  it  may  be  doubted, 
whether  such  second  notice  will  not  also  amount  to  a  waiver 
of  the  first. 


(p)  Doe,  d.  Briefly,  v.  Palmer,  16        (?)  Ante,  122,  123. 
Fast,  69. 


AS  BETWEEN  LANDLORD  AND  TENANT. 

In  a  case  where  a  landlord,  after  the  delivery  of  a 
notice  to  quit,  promised  the  tenant  that  he  should  not  be 
turned  out  until  the  place  was  sold,  and  after  the  sale  of 
the  premises,  brought  an  ejectment  upon  a  demise  anterior 
to  the  time  of  the  sale ;  it  was  contended  that  the  per- 
mission to  occupy  was  a  waiver  of  the  antecedent  notice, 
so  far  as  to  prevent  the  tenant  from  being  considered  as  a 
trespasser  by  relation  back  to  the  time  when  the  notice 
expired,  and  that  the  demise  ought  to  have  been  laid  pos- 
terior to  the  day  when  the  contract  for  the  sale  was  made. 
But  the  Court  held,  that  the  permission  amounted  only  to 
a  declaration  on  the  part  of  the  landlord,  that  until  the 
sale  of  the  place,  he  would  suspend  the  exercise  of  his 
right  under  the  notice,  and  indulge  the  tenant  by  permit- 
ting him  to  remain  on  the  premises  ;  and  that  it  was  not 
intended  to  vacate  the  notice,  or  be  destructive  of  any  of 
the  rights  which  the  landlord  had  acquired  under  it.(r)[9] 

The  acceptance  by  the  landlord  of  the  douhle  value  of 
the  premises,  given  by  the  stat.  4  Geo.  II.  c.  28.  when  the 
tenant  wilfully  holds  over  after  the  expiration  of  a  written 
notice  to  quit,  or  the  bringing  of  an  action  of  debt  for  the 
same,  will  not  be  a  waiver  of  the  notice ;  for  the  'double 
value  is  given  as  a  penalty  for  the  trespass,  and  not  as  a 
payment  between  landlord  and  tenant.  But  if,  after  the 
expiration  of  a  notice  to  quit  by  the  tenant,  the  landlord 
accept  the  double  rent  to  which  he  is  entitled  by  the  stat. 
11  Geo.  II.  c.  19.,  it  seems  that  be  cannot  afterward* 

(r)  WhiUaktr,  d.  Boult,  v.  Symondt,  10  East,  13. 


[9]  A  notice  to  quit  at  the  end  of  the  year,  is  not  waived  l>y  the  landlord's 
permitting  the  tenant  to  remain  in  ponsession  an  entire  year  after  the  expira- 
tion of  the  notice.  Baggs  r.  Black,  1  Biuney ,  338. 


144  OF  THE  ACTION  OF  EJECTMENT 

proceed  upon  the  notice  to  quit ;  for  this  latter  statute  re- 
eo«,"ii/es  the  party  by  the  name  of  tenant,  which  the  first 
statute  does  not,  and  gives  a  right  of  distress  for  the  double 
rent,  which  is  a  remedy  applicable  only  to  the  relation  of 
landlord  and  tenant.(s) 

In  cases  where  the  act  of  the  landlord  cannot  be  qua- 
lified, but  must  of  necessity  be  taken  as  a  confirmation  of 
the  tenancy,  as  if  he  distrain  for  rent  accruing  after  the 
expiration  of  the  notice,  or  recover  it  in  an  action  for  use 
and  occupation,  the  notice  will,  of  course,  be  waived  :(<) 
but  it  seems  that  a  pending  action  for  such  use  and  occu- 
pation will  not  be  sufficient  to  invalidate  the  notice;  for 
the  landlord  may  only  recover  to  the  time  of  the  expira- 
tion of  the  notice,  although  he  claim  rent  to  a  later 
period,  (u) 

By  the  common  law,  if  a  landlord  distrained  after  the  ex- 
piration of  a  term,  though  for  rent  accruing  during  its  con- 
tinuance, he  was  held  to  have  acknowledged  a  subsequent 
tenancy ;  because,  by  the  common  law,  no  distress  could 
be  made  after  the  determination  of  a  demise  ;(t>)  but  since 
tbe  statute  8  Ann.  c.  14.  s.  6.  &  7.  by  which  a  landlord 
is  allowed  to  distrain  within  six  calendar  months  after  the 
determination  of  a  lease  for  life,  for  years,  or  at  will,  pro- 
vided his  own  title,  or  interest,  and  the  possession  of  the 
tenant,  from  whom  such  rent  became  due,  be  continuing, 
a  distress  for  rent  accruing  at  the  time  of  the  expiration  of 

(s)  Doe,  d.  Cheney,  v.  Batten,  Cow-p.  (M)  Per  Butler,  J.,  Birch  v.  Wright, 

145.     Timmins   v.    Rowlinson,   Burr.  1  T.  R.  378.  et  vide  Roe,  d.  Croinjilon- 

1603.    Soulsbyv.  Wring,  9  East,  310.  v.  Minshall,  S.  N.  P  650. 

Ryal  v.  Rick,  10  East,  48.  (v)  Pennant'*  case.  3  Co.  64. 

(/)  Zouch,  d.  Ward,  v. 
1  H.  Blk.311. 


A3  BETWEEN  LANDLORD  AND  TENANT.  1  I ."> 

the  notice  to  quit,  if  made  within  the  six  months,  will  be 
no  waiver  thereof. 

Next,  of  the  termination  of  a  tenancy  by  the  act  of  the 
tenant,  which  may  happen  in  two  several  ways  ;  first,  by 
a  notice  to  his  landlord  that  he  intends  to  quit  the  posses- 
sion ;(«;)  secondly,  by  the  non-payment  of  rent,  or  non-per- 
formance of  a  covenant.(,r) 

As  the  relation  of  landlord. and  tenant  is  mutual,  the 
principles  which  govern  the  first  of  these  modes  have  been 
discussed,  when  treating  of  the  notice  to  quit  as  given  by 
the  landlord  ;  and  it,  therefore,  now  only  remains  to  inquire 
into  the  regulations  adopted  by  the  courts  in  the  two  latter 
instances. 

The  right  to  give  a  notice  to  quit  is  given  by  the  com- 
mon law,  and  is  necessarily  incidental  to  a  tenancy  from 
year  to  year :  the  determination  of  a  tenancy  by  the  non- 
payment of  rent,  or  the  non-performance  of  a  covenant, 
can  only  arise  under  an  express  agreement  between  the 
parties,  and  seldom  occurs  but  where  the  tenant  has  a  writ- 
ten lease  for  a  determinate  period. 

It  has  already  been  observed,(r/)  that  an  actual  entry 
upon  the  lands  was  formerly  necessary  before  an  ejectment 
could  be  maintained,  and  that  the  claimant's  title  must  be 
of  such  a  nature  as  to  render  his  entry  legal.  When,  there- 


(tc)  Appendix,  No.  4.  rially  in  cases  of  non-payment  of  rent, 
(x)  As  (he  non-payment  of  rent  i«,  an<l  of  nnn-pcrturmaixv  of  oilier  co- 
in fact,  the  non-pri  lonuHiK  r  of  a  co-  venants,  it  was  th»u<;!it  most  condu- 
veiiitnt,  this  particular  enumeration  cive  to  perspicuity,  to  name  them  sc- 
may  perhaps  be  logically  incorrect ;  parately. 
luit  as  the  proceedings  dilTcr  so  mate-  (y)  diitc,  10. 

19 


146  OP  THE  ACTION  OF  EJECTMENT 

fore,  a  lease  for  years  was  granted  to  the  tenant,  and  the 
right  of  possession  thereby  transferred  to  him,  the  landlord 
could  not  legally  enter  upon  the  land  during  the  continu- 
ance of  the  term  ;  and  was,  consequently,  without  remedy 
to  recover  back  his  possession  whilst  the  term  lasted,  al- 
though the  tenant  should  neglect  to  render  his  rent,  or 
otherwise  disregarded  the  conditions  of  his  grant.  When 
terms  for  years  increased  in  length  and  value,  this  became 
a  serious  evil  to  landlords.  The  tenant  might  be  so  indi- 
gent as  to  render  an  action  of  covenant  upon  the  original 
lease  altogether  useless,  and  the  premises  might  be  left 
without  a  sufficient  distress  to  countervail  an  arrear  of  rent. 
As  a  means  of  obviating  these  difficulties,  it  became  the 
practice  for  landlords  to  insert  in  their  leases  certain  pro- 
visoes and  conditions  declaring  the  lease  forfeited,  if  the 
rent  remained  unpaid  fora  certain  time  after  it  became  due, 
or  if  any  other  particular  covenant  of  the  lease  were  bro- 
ken by  the  lessee,  and  empowering  the  landlord  in  such 
cases  to  re-enter  upon,  and  re-occupy  his  lands. 

When  provisoes  of  this  nature  were  first  introduced,  the 
ancient  practice  prevailed,  and  of  course  actual  entries 
were  then  made  in  these  as  in  all  other  cases  ;  and  it  seems 
also  to  have  been  necessary,  for  some  years  after  the  mo- 
dern practice  was  invented,  and  the  sealing  of  leases  dis- 
pensed with,  for  landlords  to  make  actual  entries  upon  the 
lands,  before  they  could  take  advantage  by  ejectment  of 
the  forfeiture  of  a  lease.  This  useless  form  is  now,  indeed, 
abolished  ;  but  as  the  right  to  make  the  entry  is  still  neces- 
sary, the  provisoes  are  continued  to  the  present  day  in  their 
ancient  term?. (z) 

(=)  LUlle  v.  Htatoti,  Salk.  258.    S.    Vent.  248.     Wither  v.  Gibson,  3  Keb. 
C.   Ld.  Raym    750.      Gowlrighl,  A.    218. 
Hare,  v.  Cator,  Doug.  477.   Anony.  1 


AS   BETWEEN   LANDLORD  AND  TENANT.  117 

Having  thus  briefly  shown  the  principles  upon  which 
these  provisoes  are  founded,  we  shall  now  inquire,  first  as 
to  the  covenants  deemed  by  our  law  to  be  valid ;  secondly, 
as  to  what  will  amount  to  the  breach  of  any  particular  co- 
venant, and  herein  of  the  proceedings  at  common  law,  and 
under  the  statute  4  Geo.  II.  c.  28.  on  a  clause  of  re-entry 
for  non-payment  of  rent ;  and,  thirdly,  as  to  the  modes  by 
which  conditions  may  be  dispensed  with,  or  forfeitures 
waived. 

The  landlord,  having  the  jus  disponendi,  may  annex  what- 
ever conditions  he  pleases  to  his  grant,  provided  they  be 
neither  contrary  to  the  laws  of  the  kingdom,  nor  to  the  prin- 
ciples of  reason,  or  public  policy  ;  and  it  is  by  these  gene- 
ral maxims  we  must  be  guided,  when  called  upon  to  con- 
sider the  validity  of  any  particular  covenant  in  a  lease;  for 
only  one  decided  case  upon  the  subject  is  to  be  found  in 
our  legal  authorities. 

The  lease  in  that  case  was  for  twenty-one  years,  and  the 
proviso,  that  the  landlord  should  have  the  power  to  re-enter, 
it' tin-  tenant  committed  any  act  of  bankruptcy  whereon  a 
commission  should  issue.  This  proviso  was  holden  valid, 
upon  the  principle,  that  as  it  is  reasonable  for  a  landlord  to 
restrain  his  tenant  from  assigning,  so  it  is  equally  reason- 
able for  him  to  guard  against  such  an  event  as  bankruptcy, 
for  the  consequences  of  bankruptcy  would  be  an  assignment; 
and  that  such  a  proviso  is  not  contrary  to  any  express  law, 
nor  against  reason  or  puplic  policy,  for  it  is  a  proviso  which 
cannot  injure  the  creditors,  who  would  not  rely  on  the 
po>-session  of  the.  land  by  the  occupier  without  a  knowledge 
also  of  the  interest  he  had  therein ;  and  to  discover  this 
they  must  look  into  the  lease  itself,  where  they  would  find 
Hie  proviso,  that  the  tenant's  interest  would  be  forfeited  in 


148       OF  THE  ACTION  OF  EJECTMENT 

case  of  bankruptcy.  Duller,  J.  in  his  judgment  on  the 
case,  made  a  distinction  between  leases  for  short  terms.  ;md 
very  long  leases,  with  respect  to  provisoes  of  this  nature ; 
because,  if  they  were  to  be  inserted  in  very  long  leases,  it 
would  be  tying  up  property  for  a  considerable  length  of 
time,  and  be  open  to  the  objections  of  creating  a  perpetu- 
ity ;  but  he  afterwards  adds,  that  the  principal  ground  of 
his  decision  was,  because  it  was  a  stipulation  not  against 
law,  nor  repugnant  to  any  thing  stated  in  the  former  part 
of  the  lease,  but  merely  a  stipulation  against  the  act  of  the 
lessee  himself,  which  it  was  competent  for  the  lessor  to 
make. (a) 

Secondly,  of  what  will  amount  to  the  breach  of  any 
particular  covenant,  and  herein  of  the  proceedings  at 
common  law,  and  under  the  statute  4  Geo.  II.  c.  28.  on  a 
clause  of  re-entry  for  non-payment  of  rent. 

The  power  generally  reserved  in  leases  to  landlords  to 
re-enter  upon  the  premises,  in  case  the  rent  shall  remain 
in  arrear  for  a  certain  time  after  it  is  due,  is  the  most 
common  proviso  upon  which  ejectments  for  forfeitures  for 
breach  of  covenant  are  founded,  and  as  several  provisions 
are  made,  both  by  the  common  and  statute  law,  for  regu- 
lating ejectments  brought  upon  such  provisoes,  a  separate 
consideration  of  the  mode  of  proceeding  upon  a  clause  of 
re-entry  for  rent  in  arrear,  seems  the  most  perspicuous 
method  of  treating  the  subject. 

At  the  time  when  provisoes  for  re-entry  were  first  in- 
troduced, it  was  unfortunately  the  practice  to  disfigure  the 
principles  of  law  by  endless  subtleties  and  distinctions : 

(a)  Roe,  d.  Hunter,  v.  Gallicrs,  2  T.  R.  133. 


AS  BETWEEN  LANDLORD  AND  TENANT.    149 

and  the  preliminaries  required  by  the  common  law,  before 
a  landlord  can  bring  an  ejectment  upon  a  clause  of  re- 
entry for  non-payment  of  rent,  arc  so  numerous,  as  to  ren- 
der it  next  to  impossible  for  any,  unversed  in  the  practice 
of  the  courts,  to  take  advantage  of  a  proviso  of  this  nature. 
First,  a  demand  of  the  rent  must  be  made,  either  in  per- 
son, or  by  an  agent  properly  authorised. (b)  Secondly,  the 
demand  must  be  of  the  precise  rent  due  ;  for  if  he  demand 
a  penny  more,  or  less,  it  will  be  ill.  Thirdly,  it  must  be 
made  precisely  upon  the  day  when  the  rent  is  due,  and  pay- 
able, by  the  lease,  to  save  the  forfeiture  :  as,  where  the 
proviso  is,  "  that  if  the  rent  shall  be  behind  and  unpaid, 
by  the  space  of  thirty,  or  any  other  number  of  days  after 
the  day  of  payment,  it  shall  be  lawful  for  the  lessor  to  re- 
enter,"  a  demand  must  be  made  on  the  thirtieth,  or  other 
last  day.  Fourthly,  it  must  be  made  a  convenient  time 
before  sun-set.  Fifthly,  it  must  be  made  upon  the  land, 
and  at  the  most  notorious  place  of  it.  Therefore,  if  there 
be  a  dwelling-house  upon  the  land,  the  demand  must  be  at 
the  front  or  fore  door,  though  it  is  not  necessary  to  enter 
the  house,  notwithstanding  the  door  be  open  ;  but  if  the 
tenant  meet  the  lessor  either  on  or  off  the  land,  at  any  time 
of  the  last  day  of  payment,  and  tender  the  rent,  it  is  suf- 
ficient to  save  a  forfeiture,  for  the  law  leans  against  forfei- 
tures. Sixthly,  unless  a  place  is  appointed  where  the  rent 
is  payable,  in  which  case  the  demand  must  be  made  at 
such  place.  Seventhly,  a  demand  of  the  rent  must  be 
made  m/ac/,  although  there  should  be  no  person  on  the 
land  ready  to  pay  it.(c) 

Nor  are  these  the  only  vexatious  difficulties  to  which  a 


(A)  /foe,  d.  Wesit  v.  Davit,  7  East,        (r)  1  Sauml.  287.  (n.  16.) 
363. 


l.)0  OF  THE  ACTION  OF  EJECTMENT 

landlord,  by  the  common  law,  was  subject.  The  courts, 
notwithstanding  his  compliance  with  all  the  required  for- 
malities, would  set  aside  the  forfeiture,  upon  the  payment 
of  the  debt  and  costs,  at  any  time  before  execution  execut- 
ed ;(rf)  and  the  tenant  might  at  any  time  apply  to  a  court 
of  equity  for  relief. 

Where  the  ejectment  is  brought  upon  a  clause  of  re-en- 
try, and  less  than  six  months  rent  is  due,  all  these  evils  still 
exist ;  although,  by  the  wise  provisions  of  the  legislature, 
the  landlord  is  now  relieved  from  the  two  latter  inconve- 
niences, in  all  cases  were  six  months  rent  is  in  arrear; 
and  is  also  exempted  from  an  observance  of  the  forms  and 
niceties  of  the  common  law,  if  there  be  likewise  no  suf- 
ficient distress  upon  the  premises. 

By  the  4th  Geo.  II.  c.  28.  s.  2.  it  is  enacted,  that,  "  in 
"  all  cases  between  landlord  and  tenant,  as  often  as  it  shall 
"  happen  that  one  half  year's  rent  shall  be  in  arrear,  and 
"  the  landlord  or  lessor,  to  whom  the  same  is  due,  hath 
"  right  by  law  to  re-enter  for  the  non-payment  thereof, 
"  such  landlord  or  lessor  shall  and  may,  without  any  for- 
"  mal  demand  or  re-entry,  serve  a  declaration  in  ejectment 
"  for  the  recovery  of  the  demised  premises;  or  in  case  the 
"  same  cannot  be  legally  served,  or  no  tenant  be  in  actual 
"  possession  of  the  premises,  may  then  affix  the  same  upon 
"  the  door  of  any  demised  messuage  ;  or  in  case  such  eject- 
"  ment  shall  not  be  for  the  recovery  of  any  messuage,  then 
"  upon  some  notorious  place  of  the  lands,  tenements,  or 
"  hereditaments,  comprised  in  such  declaration  in  eject- 
u  ment,  and  such  affixing  shall  be  deemed  legal  service 
"  thereof,  which  service  or  affixing  such  declaration  in 

(d)  Hoe,  d.  Wttt,  T.  Dane*,  7  East,  363,, and  the  caw  there  tiled. 


AS  BETWEEN  LANDLORD  AND  TENANT.          151 

•4  ejectment,  shall  stand  in  the  place  and  stead  of  a  demand 
"  and  re-entry;  and  in  case  of  judgment  against  the  ca-it:il 
"  ejector,  or  nonsuit  for  not  confessing  lease,  entry,  and 
"  ouster,  it  shall  be  made  to  appear  to  the  court  where 
"  the  said  suit  is  depending,  by  affidavit,  or  be  proved  upon 
"  the  trial,  in  case  the  defendant  appears,  that  half  a  year's 
"  rent  was  due  before  the  said  declaration  was  served ; 
"  and  that  no  sufficient  distress  was  to  be  found  on  the  de- 
"  mised  premises,  countervailing  the  arrears  then  due,  and 
"  that  the  lessor  or  lessors  in  ejectment  had  power  to  re- 
"  enter ;  that  then,  and  in  every  such  case,  the  lessor  or 
"  lessors  in  ejectment  shall  recover  judgment  and  execu- 
"  tion,  in  the  same  manner  as  if  the  rent  in  arrear  had  been 
"  legally  demanded,  and  a  re-entry  made  ;  and  in  case  the 
"  lessee  or  lessees,  his,  her,  or  their  assignee  or  assignees, 
;'  or  other  person  or  persons  claiming  or  deriving  under 
"  the  said  leases,  shall  permit  and  suffer  judgment  to  be 
"  had  and  recovered  on  such  ejectment,  and  execution  to 
"  be  executed  thereon,  without  paying  the  rent  and  arrears, 
;'  together  with  full  costs,  and  without  filing  any  bill  or 
i;  bills  for  relief  in  equity,  within  six  calendar  months  after 
"  such  execution  executed  ;  then  such  lessee,  &c.  and  all 
"  other  persons  claiming  and  deriving  under  the  said  lease. 
"  shall  be  barred  and  foreclosed  from  all  relief  or  remedy 
"  in  law  or  equity,  other  than  by  writ  of  error,  for  reversal 
"  of  such  judgment,  in  case  the  same  shall  be  erroneous. 
"  and  the  said  landlord  or  lessor  shall  from  thenceforth 
"  hold  the  said  demised  premises  discharged  from  such 
"  lease ;  and  if  on  such  ejectment,  a  verdict  shall  pass  for 
"  the  defendant,  or  the  plaintiff  shall  be  nonsuited  therein. 
"  except  for  the  defendant's  not  confessing,  &c.  then  such 
"  defendant  shall  have  and  recover,  his,  her,  or  their  full 
"costs:  provided  always,  that  nothing  herein  contained 
•'  shall  extend  to  bar  the  right  of  auy  mortgagee  or  mort- 


152  OF  THE  ACTION  OF  EJECTMENT 

"  gagees  of  such  lease,  or  any  part  thereof,  who  shall  not 
"  be  in  possession,  so  as  such  mortgagee  or  mortgagees 
"  shall,  within  six  calendar  months  after  such  judgment 
"  obtained,  and  execution  executed,  pay  all  rent  in  arrear. 
"  and  all  costs  and  damages  sustained  by  such  lessor,  or 
"  persons  entitled  to  the  remainder  or  reversion  as  afore- 
"  said,  and  perform  all  the  covenants  and  agreements,  which 
"  on  the  part  and  behalf  of  the  first  lessee  or  lessees  ought 
"  to  be  performed." 

By  section  3,  "  in  case  the  said  lessee  or  lessees,  his,  her, 
"  or  their  assignee  or  assignees,  or  other  person  claiming 
"  any  right,  title,  or  interest,  in  law  or  equity,  of,  in,  or  to 
"  the  said  lease,  shall,  within  the  time  aforesaid,  file  one 
"  or  more  bill  or  bills,  for  relief  in  any  court  of  equity,  such 
"  person  or  persons  shall  not  have  or  continue  any  injunc- 
"  tion,  against  the  proceedings  at  law  on  such  ejectment, 
"  unless  he,  she,  or  they  shall,  within  forty  days  next  after 
"  a  full  and  perfect  answer  shall  be  filed  by  the  lessor 
"  or  lessors  of  the  plaintiff*  in  such  ejectment,  bring  into 
"  Court,  and  lodge  with  the  proper  officer,  such  sum  of 
"  money,  as  the  lessor  or  lessors  of  the  plaintiff  in  the  said 
"  ejectment  shall,  in  their  answers,  swear  to  be  due  and 
"  in  arrear,  over  and  above  all  just  allowances,  and  also 
"  the  costs  taxed  in  the  said  suit,  there  to  remain  till  the 
"  hearing  of  the  cause,  or  to  be  paid  out  to  the  lessor  or 
"  landlord  on  good  security,  subject  to  the  decree  of  the 
"  Court  ;  and  in  case  such  bill  or  bills  shall  be  filed  within 
"  the  time  aforesaid,  and  after  execution  is  executed,  the 
"  lessor  or  lessors  of  the  plaintiff  shall  be  accountable  only 
"  for  so  much,  and  no  more,  as  he,  she,  or  they  shall  really 
"  and  bona  fide,  without  fraud,  deceit,  or  wilful  neglect, 
"  make  of  the  demised  premises  from  the  time  of  their  cn- 
"  tering  into  the  actual  possession  thereof;  and  if  what 


AS  BETWEEN  LANDLORD  AND  TENANT.    153 

'<  shall  be  so  made  by  the  lessor  or  lessors  of  the  plaintiff, 
"  happen  to  be  less  than  the  rent  reserved  on  the  said 
"  lease,  then  the  said  lessee  or  lessees,  his,  her,  or  their 
"  assignee  or  assignees,  before  he,  she,  or  they  shall  be 
"  restored  to  his,  her,  or  their  possession  or  possessions, 
"  shall  pay  such  lessor  or  lessors,  or  landlord  or  landlords, 
"  what  the  money  so  by  them  made,  fell  short  of  the  re- 
"  served  rent,  for  the  time  such  lessor  or  lessors  of  the 
"  plaintiff,  landlord  or  landlords,  held  the  said  lands." 

Section  4.  "  Provided,  that  if  the  tenant  or  tenants,  his, 
"  her,  or  their  assignee  or  assignees,  shall  at  any  time  be- 
"  fore  the  trial  in  such  ejectment,  pay  or  tender  to  the 
"  lessor  or  landlord,  his  executors  or  administrators,  or  his, 
"  her,  or  their  attorney  in  that  cause,  or  pay  into  the  court 
"  where  the  same  cause  is  depending,  all  the  rent  and  ar- 
"  rears,  together  with  the  costs,  then  all  further  proceed- 
"  ings  on  the  said  ejectment  shall  cease  and  be  discontinued; 
"  and  if  such  lessee,  &c.  or  their  executors,  administrators, 
"  or  assigns,  shall,  upon  scch  bill  filed  as  aforesaid,  be  re- 
"  lieved  in  equity,  he,  she,  and  they,  shall  have,  hold,  and 
"  enjoy,  the  demised  lands,  according  to  the  lease  thereof 
u  made,  without  any  new  lease  to  be  thereof  made  to  him, 
"  her,  or  them."[l] 


[1]  But  where  the  proceeding1  is  at  common  law,  the  claim  of  the  plaintiff 
is  ttricti  juris,  and  all  the  niceties  required  by  the  common  law  must  be  pre- 
viously complied  with  to  entitle  the  reversions  to  re-enter.  There  must  be  a 
demand  of  the  rent  due  on  the  last  day,  at  such  a  convenient  time  before  sun- 
svi,  that  the  money  may  be  numbered  and  received,  and  it  is  incumbent  on 
the  plaintiff  to  show  during  what  part  of  the  afternoon  the  demand  was  made. 
Jafkson  v.  Harrison,  17  Johns.  6<>. 

By  a  recent  statute  of  New-York,  landlords  are  enabled  to  regain  the  pos.- 
session  from  refractory  tenants,  by  a  process  far  more  summary  than  the  re- 
medy by  ejectment.  The  statute  passed  43d  Session,  0830)  chap.  194.  paff* 
176.  will  be  found  in  Appendix,  No.  49. 

20 


151        OF  THE  ACTION  OF  EJECTMENT 

Some  little  perplexity  attends  the  wording  of  these  sec- 
tions, which  seem,  upon  the  first  reading,  to  extend  only  to 
cases  of  ejectment  brought  after  half  a  year's  rent  due, 
where  the  landlord  has  a  right  to  re-enter,  and  where  no 
sufficient  distress  is  to  be  found  upon  the  premises ;  but 
the  statute  has  been  held  to  be  more  general  in  its  opera- 
tion, and  its  provisions  (with  the  exception  of  the  one, 
which  dispenses  with  the  formalities  required  by  the  com- 
mon law  upon  a  clause  of  re-entry  for  non-payment  of  rent) 
extend  to  all  cases  where  there  .is  six  months  rent  in  arrear, 
and  a  right  of  re-entry  in  the  landlord. (e) 

The  legislature  appear  to  have  four  different  objects  in 
view,  in  the  enactments  of  this  statute.  First,  to  abolish 
the  idle  form  of  a  demand  of  rent,  where  no  sufficient  dis- 
tress can  be  found  upon  the  premises  to  answer  that  de- 
mand ;  secondly,  in  cases  of  beneficial  leases  which  may 
have  been  mortgaged,  to  protect  the  mortgagees  against 
the  fraud  or  negligence  of  their  mortgagors.  Thirdly,  to  ren- 
der the  possession  of  the  landlord  secure,  after  he  has  re- 
covered the  lands  ;  and  fourthly,  to  take  from  the  Court  the 
discretionary  power  they  formerly  exercised,  of  staying  the 
proceedings,  at  any  stage  of  them,  upon  payment  of  the 
rent  in  arrear,  and  costs.  The  first  of  these  objects  is  ef- 
fected by  permitting  the  landlord  to  bring  his  ejectment 
without  previously  demanding  the  rent:  the  second,  by 
permitting  a  mortgagee  not  in  possession  to  recover  back 
the  premises  at  any  time  within  six  months  after  execution 
executed,  by  paying  all  the  rent  in  arrear,  damages  and 
costs  of  the  lessor,  and  performing  all  the  covenants  of  the 
lease  :(/)  the  third,  by  limiting  the  time  for  the  lessee 

(«)  Roe,  d.  Wett,  v.  Davis,  7  East,         (/)  It  is  difficult  to  discover  from 
363.  the  report  of  the  case  of  Doe,  d.  tt'kit- 


AS  BETWEEN  LANDLORD  AND  TENANT.    155 

or  his  assigns,  to  make  an  application  to  a  court  of 
equity  for  relief,  to  six  calendar  months  after  execution 
executed :  and  the  fourth,  by  limiting  the  application  of 
the  lessee  to  stay  proceedings,  upon  payment  of  the  rent 
in  arrear  and  costs,  to  the  time  anterior  to  the  trial,  and 
making  it  compulsory  upon  the  Court  to  grant  the  applica- 
tion when  properly  made.(g) 

As  this  statute  dispenses  with  a  demand  for  rent  in  those 
cases  only  where  there  is  no  sufficient  distress  upon  the 
premises,  as  well  as  six  months  rent  in  arrear,  it  is  still 
necessary  for  the  lessor  to  comply  with  all  the  formalities 
of  the  common  law,  before  he  can  proceed  upon  a  clause 
of  re-entry  for  non-payment  of  rent,  if  a  sufficient  distress 
can  be  found. (A)  But  an  insertion  in  the  proviso  of  the 
lease  that  the  right  of  re-entry  shall  accrue  upon  the  rent  be- 
ing lawfully  demanded,  will  not  render  a  demand  necessary 
if  there  be  no  sufficient  distress,  for  it  is  only  stating  in  express 
words,  that  which  is  in  substance  contained  from  the  prin- 
ciples of  the  common  law  in  every  proviso  of  this  nature. (») 

fold,  v.  Roe,  3  Taunt.  402,  what  was        (g)  Roe,  d.  West,  v.  Davit,  1  East, 

the  true  point  submitted  to  the  judg-  363. 

mcnt  of  the  court.  It  is  quite  clear  it  (A)  Doe,  d.  Forster,  v.  Wandlcas,  7 
is  not  (he  one  stated  in  the  margin,  T.  R.  117.  Vide  Smith  v.  Spooner,3 
viz.  "  that  the  mortgagee  of  a  lease  Taunt.  246—252. 
has  the  same  title  to  relief  against  an  (i)  Doe,  d.  Schofald,  v.  Alexander, 
ejectment  for  non-payment  of  rent,  2.  M.  &.  S.  525.  Lord  Ellenborough, 
and  upon  the  same  terms,  as  the  tes-  C.  J.  differed  from  the  other  judges  in 
*ee  against  whom  the  recovery  is  had,"  this  case,  he  being  of  opinion,  that 
because  by  the  provisions  of  this  sta-  when  the  words  "  being  lawfully  de- 
tute,  a  lessee  can  only  have  relief  manded"  were  inserted  in  a  proviso 
against  an  ejectment  for  a  forfeiture,  for  re-entry,  they  were  to  beconsiik-r 
upon  paying  the  arrears  of  rent  and  ed  as  a  stipulation  between  the  par- 
costs  of  suit  into  court  before  trial,  tics  that  the  rent  should  be,  in  fact, 
whereas  a  mortgagee  may  obtain  te-  demanded  (though  not  with  the  strict- 
lief  upon  paying  the  arrears,  costs,  ness  of  the  common  law)  before  eject- 
aud  damages,  at  any  time  within  tin  mcnl  brought 
monlla  after  execution  executed. 


156       OF  THE  ACTION  OF  EJECTMENT 

It  has  been  observed,  that  the  provisions  of  this  statute 
(with  the  exeption  of  the  one  relating  to  the  demand  of  rent) 
extend  to  all  cases  where  there  is  six  months  rent  unpaid, 
and  the  landlord  has  a  right  to  re-enter.  This  point  has 
only  been  decided  upon  that  part  of  the  fourth  section  which 
directs  all  proceedings  to  be  staid  upon  payment  of  the  rent 
in  arrear  and  costs  before  trial ;  but  the  principle  of  the 
decision  seems  to  apply  to  all  the  other  provisions  of  the 
statute  as  well  as  to  the  one  then  immediately  before  the 
Court. — It  was  objected  in  that  case  that  the  statute  only 
applied  to  cases  of  ejectment  brought  after  half  a  year's 
rent  due,  where  no  sufficient  distress  was  to  be  found  upon 
the  premises  ;  but  Lord  Ellenborough,  C.  J.,  says,  "  the  sta- 
tute is  more  general  in  its  operation  5  for  though  the  fourth 
clause  has  the  word  such,  (such  ejectment,)  yet  the  second 
clause,  to  which  it  refers,  is  in  the  disjunctive  ;  stating  first, 
that  in  all  cases  between  landlord  and  tenant,  when  half  a 
year's  rent  shall  be  in  arrear,  and  the  landlord  has  a  right 
of  re-entry  for  non-payment  thereof,  he  may  bring  eject- 
ment, &c.,  or  in  case  the  same  cannot  be  legally  served, 
&c.  or  in  case  such  ejectment  shall  not  be  for  the  recovery 
of  any  messuage,  &c.  and  iii  case  of  judgment  against  the 
casual  ejector,  or  nonsuit,  for  not  confessing  lease,  entry, 
and  ouster,  it  shall  appear  by  affidavit,  or  be  proved  upon 
the  trial,  in  case  the  defendant  appears,  that  half  a  year's 
rent  was  due  before  the  declaration  served,  and  that  no  suf- 
ficient distress  was  to  be  found  on  the  premises,  and  that 
the  lessor  had  power  to  re-enter ;  then,  and  in  every  such 
case,  the  lessor  in  ejectment  shall  recover  judgment  and 
execution."(&) 

By  the  words  of  the  fourth  section  the  lessee  is  to  pay  the 
(t)  Roe,  d.  JF«/,  v.  Daris,  7  East,  363 


AS  BETWEEN  LANDLORD  AND  TENANT.          157 

arrears  of  rent,  &c.  into  court  before  the  trial ;  and  no  pro- 
vision is  expressly  made  for  his  relief  in  case  he  should  suf- 
fer judgment  to  go  by  default  against  the  casual  ejector.  If, 
however,  the  point  should  arise,  it  is  probable  that  the  Court 
would  not  consider  a  judgment  so  obtained  as  equivalent 
to  a  trial,  but  would  grant  relief  to  the  lessee  at  any  time 
before  execution  executed.  In  the  case  of  Goodtitle  v. 
Holdfast,(l)  which  was  decided  about  the  time  when  the 
statute  was  enacted,  relief  was  given  under  such  circum- 
stances ;  but  as  there  is  no  allusion  to  the  statute  in  the  re- 
port of  the  case,  it  is  probable  that  the  decision  took  place 
before  it  passed  into  a  law. 

The  provision  of  this  fourth  section  seems  also  to  extend 
only  to  cases  where  the  rent  and  costs  are  tendered  to  the 
lessor,  or  paid  into  court,  after  action  brought ;  yet  where 
the  tenant  tendered  the  rent  in  arrear  after  the  lessor  had 
given  instructions  to  his  attorney  to  commence  an  action, 
but  before  the  declaration  had  been  delivered,  the  court 
set  aside  the  proceedings  with  costs,  although  it  was  urged 
by  the  lessor  that  such  tender  was  merely  matter  of  defence 
at  the  trial.(m) 

Where  the  ejectment  was  brought  on  a  clause  of  re-entry 
in  the  lease  for  not  repairing,  as  well  as  for  rent  in*  arrear 
under  the  statute,  it  was  argued,  on  a  motion  to  stay  pro- 
ceedings upon  payment  of  the  rent,  that  the  case  was  not 
within  the  act,  because  it  was  not  an  ejectment  founded 
-iiiLrly  on  the  non-payment  of  rent ;  but  the  court,  notwith- 
standing, made  the  rule  absolute,  with  liberty  for  the  lessor 
to  proceed  on  any  other  title. (n)  But  where  the  lessor  has 

(0£«J/er7>rw,4Geo.n.S«ran.900.         (n)  Purr,  <!    n'ithtn,\.  Sturdy,  B. 
(ni)    Coodriirltt,  d.   Stei>hrn*nn,   v      N   P.  97 
,  W.  Blark.  746. 


158       OF  THE  ACTION  OF  EJECTMENT 

recovered  possession  of  the  premises,  a  court  of  equity  will 
not  grant  relief  under  the  second  section,  if  such  recovery 
was  by  reason  of  the  breach  of  other  covenants  or  condi- 
tions, as  well  as  by  the  non-payment  of  rent.  And  where  the 
tenant  applied  to  the  Court  of  Chancery  to  relieve  against 
a  recovery  upon  judgment  by  default  against  the  casual 
ejector,  alleging  that  the  ejectment  was  brought  for  a  for- 
feiture incurred  by  non-payment  of  rent,  which  allegation 
was  contradicted  by  the  landlord,  who  stated  in  his  answer, 
that  the  tenant  had  also  broken  many  of  the  covenants  of 
the  lease,  for  which  the  landlord  had  a  right  to  re-enter ; 
the  court  directed  an  issue  to  try,  whether  the  landlord 
knew  of  any  of  the  breaches  of  covenant,  at  the  time  of 
bringing  the  ejcctment.(o) 

Where  the  lessors  of  the  plaintiffwere  both  devisees  and 
executors,  and  in  each  capacity  rent  was  due  to  them,  the 
defendant  moved  to  stay  proceedings  on  payment  of  the 
rent  due  to  the  lessors  of  the  plaintiff  as  devisees,  they  not 
being  entitled  to  bring  ejectment  as  executors ;  there  ap- 
peared to  be  a  mutual  debt  to  the  defendant  by  simple  con- 
tract, and  the  defendant  offered  to  go  into  the  whole  ac- 
count, taking  in  both  demands,  as  devisees  and  executors, 
having  just  allowances,  which  the  lessors  of  the  plaintiff  re- 
fused :.the  rule  was  made  absolute  to  stay  proceedings  on 
payment  of  the  rent  due  to  the  lessors  as  devisees,  and 
costs.Qp) 

The  proceedings  may  be  staid,  either  by  moving  the 
court,  or  in  vacation  time  by  summons. (</) 

(o)  Wadmun  v.  Cakraft,  10  Vez.  (p)  Duckworth,  d.  Tubley,  v.  Tvn- 
67.  flail,  Barn.  184. 

(q)  2  Sell.  Prac.  127. 


• 

AS  BETWEEN  LANDLORD  AND  TENANT.    159 

In  moving  for  judgment  against  the  casual  ejector,  in  an 
ejectment  brought  under  the  provisions  of  this  statute,  the 
Court  will  not  grant  a  rule  for  judgment  without  an  atiiila- 
vit,(r)  pursuant  to  the  statute,  that  half  a  year's  rent  was 
in  arrear  before  declaration  served,  that  the  lessor  of 
the  plaintiff'  had  a  right  to  re-enter,  and  that  no  sufficient 
distress  was  to  be  found  upon  the  premises  countervailing 
the  arrears  of  rent  then  due  :  and,  if  the  case  require  it, 
the  affidavit  must  also  go  on  to  state,  that  the  premises  were 
untenanted,  or  that  the  tenant  could  not  be  legally  served 

(r)  In  the  case  of  Doe,  d.  Hilchings,  was  necessary  for  the  defendant  (the 

v.   Lewi*,    (Burr.  614.  )  it  appeared,  original  landlord)  to  give  evidence  of 

that  the  lessor  of  the  plaiutiiThad  once  this  affidavit.     The -court  were  iinanL- 

been  tenant  to  the  defendant,  tinder  a  mously    of  opinion,    that  from     the 

lease  for  a  term  of  years,  of  wliich  lapse  of  years  no  such  evidence  was 

some  were  yet  to  come  ;  and  had  been  necessary  ;[2]  but  it  seems  to   have 

ejected  by  him   nearly  twenty  years  been    Lord   Mansfield's  opinion,  that 

before,  by  a  judgment  in  ejectment  if  the  lessor  of  the  plaintiff  in  the  se- 

a^.iiiist  the  casual  ejector,  pursuant  cond  acticn  had  proved,  that  in  point 

to  the  statute  of  4  Geo.  II.  c.  28.  for  of  fact  no  affidavit  had  been  made,  he 

non-payment  of  rent.    The  title  set  would  have  bedn  entitled  to  recover, 

up  by  the  lessor  in  this  last  action  was  But  qtuere,  if  the  proper  method  in 

the  irregularity  of  the  proceedings  in  such  case,  if  the  judgment  be  recent, 

the  first  ejectment,  from  the  want  of  is  no*  to  move  the  court,  upon  affida- 

a  proper  affidavit  whereon  to  ground  vit  of  facts,  to  set  aside  the  judgment 

the  judgment ;  and  the  question  for  for  irregularity  ? 
the  Court  to  decide  was,  whether  it 


[2]  The  same  point  was  ruled  by  the  Supreme  Court  of  New- York,  in  Jack- 
ton  v.  Wilson,  (3  Johns.  Cas.  296  )  where  they  say,  "  if  the  proceeding  was 
under  the  statute,  we  must  consider  the  regular  affidavit  as  having  been 
filed ;  or,  if  otherwise,  that  all  the  requisites  attending  an  actual  entry  at 
common  law  had  been  complied  with." 

Where  lessee,  under  a  perpetual  lease,  abandoned  the  promises,  and  per- 
sons claiming  under  lessor  had  bern  in  possession  for  fourteen  years  since 
lessee's  departure,  a  ro-pntry  by  the  lessor  was  presumed.  Jackson  v.  Dema- 
rtsl,  2  Caincs'  Rep.  383.  and  Kent,  J  cites  a  case  where  an  affidavit  of  ar- 
rears had  been  presumed.  Also  fide  Jnckson  T.  Stewart,  6  Johns.  34. 

An  ejectment  dous  not  lie  against  an  absconding  tenant.  Jackson  v.  Haktt, 
2  Games'  Rep.  33* 


160  OF  THE  ACTION  OF  EJECTMENT 

with  the  declaration,  or  as  the  facts  may  be,  and  that  a  co- 
py of  the  declaration  was  affixed  on  the  most  notorious 
(stating  what)  part  of  the  premises.(s) 

This  affidavit  is  of  course  only  necessary  upon  moving 
for  judgment  against  the  casual  ejector,  or  after  a  nonsuit 
at  the  trial  for  the  tenant's  not  confessing  lease,  entry,  and 
ouster ;  but  if  the  tenant  appear,  and  the  ejectment  come 
to  trial,  the  matters  contained  in  the  above  affidavit  must 
be  proved. (f) 

When  a  forfeiture  has  accrued  upon  a  clause  of  re-entry 
for  rent  in  arrear,  such  forfeiture  will  be  waived,  if  the  land- 
lord do  any  act  after  the  forfeiture  which  amounts  to  an 
acknowledgment  of  a  subsisting  tenancy ;  as  if  he  receives 
rent  due  at  a  subsequent  quarter,  or  distrain  for  that  in 
respect  of  which  the  forfeiture  accrued,  or  receive  the 
same  and  give  a  receipt  for  it  as  for  so  much  rent,  or  in 
which  he  calls  the  party  his  tenant.  It  seems,  however, 
according  to  the  old  authorities,  that  in  the  case  of  a 
lease  for  years,  the  bare  acceptance  by  the  lessor  at  a  sub- 
sequent day,  of  the  rent,  in  respect  of  which  the  forfeiture 
accrued,  although  before  ejectment  brought,  will  not  of 
itself,  unless  accompanied  with  circumstances  which  show 
an  intention  to  continue  the  tenancy,  bar  him  of  his  right 
to  re-enter,  because  the  rent  is  a  duty  due  to  him,  and  as 
well  before  as  after  re-entry,  he  may  have  an  action  of 
debt  for  the  same  on  the  contract  between  the  lessor  and 
lessee ;  but  that  in  the  case  of  a  lease  for  life,  the  mere 
acceptance  of  such  rent  will  be  sufficient  to  affirm  the  lease, 
as  the  lessor  could  not  receive  it  as  due  upon  any  contract. 


(»)  Appendix,  No.  19.  (0  Doe,  d.  HHchings,  v.  Leici*,  Burr. 

614.  90. 


AS  BETWEEN  LANDLORD  AND  TENANT.    161 

but  must  receive  it  as  his  rent ;  for  when  he  accepted  the 
rent  he  could  not  have  an  action  of  debt  for  it,  but  hii 
remedy  was  by  assize,  if  he  had  seisin,  or  distress. (w) 

Where  an  ejectment  was  brought  upon  a  proviso  of  re- 
entry for  non-payment  of  rent,  and  the  lessor  also  com- 
menced an  action  of  covenant  for  rent,  accruing  subse- 
quently to  the  day  of  the  demise  in  the  ejectment,  and  the 
tenant  paid  into  court  the  rent  demanded  in  the  action 
of  covenant,  the  forfeiture  was  holden  to  be  waived ;  but  it 
seems  doubtful,  whether  the  commencement  of  the  action 
of  covenant  was  of  itself  sufficient  to  waive  the  forfeiture.(u) 

It  seems  that  a  landlord  will  not  waive  his  right  of  re- 
entry for  a  forfeiture,  incurred  by  non-payment  of  rent,  by 
taking  an  insufficient  distress  for  that  rent. (to) 

(«)  Green's  case,  Cro.  Eliz.  3.  S.  raised  premises,  whereby  the  land- 
C.  1  Leon.  262.  Pennant's  case,  3  lords  are  put  to  the  expense  and  de- 
Co.  64.  et  vide  Doe,  A.  Cheney,  v.  Bat-  lay  of  recovering  them  in  ejectment, 
ten,  Cowp.  243.  it  is  enacted,  "  That  if  any  tenant 

(v)  Doe,  d.  Crompton,  v.  Minshul,  "  holding  any  lands,  tenements,  or 

B.  N.  P.  96.  S.  N.  P.  650.  "  hereditaments,  at  a  rack  rent,  or 

(IP)  Brewer,  d.  Lord  Onslow,  v.  "  where  the  rent  reserved  shall  be  full 

Eaton,  cited  in  Goodright,  d.  Charter,  "three-fourths  of  the  yearly  value  of 

v.  Cordwenl,  6  T.  R.  220.  ft  may  be  "  the  demised  premises,  who  shall  be  in 

useful  to  notice  in  this  place  a  provi-  "  arrear  for  one  years'  rent,  shall  de- 

sion  of  the  legislature  in  one  particu-  "  sert  the  demised  premises,  and  leave 

lar  case  of  rent  in  nrrear,  although  it  "  the  same  uncultivated  or  unoccupi- 

does  not  strictly  belong  to  a  treatise  "  ed,  so  as  no  sufficient  distress  can 

on  ejectment.  By  the  statute  11  Geo.  "  be  had  to  countervail  the  arrears  of 

II.  c.  19.  s.  16.  after  reciting,  that  "  rent ;  it  shall  and  may  be  lawful,  to 

landlords  are  often  great  sufferers  by  "  and  for  two  or  more  justices  of  the 

tenants  running  away  in  arrear,  and  "  peace  of  the  county,  riding,  division, 

not  only  suffering  the  demised  premi-  "  or  place,  (having  no  interest  in  the 

scs  to  be  uncultivated  without  any  "  demised  premises,)  at  the  request  of 

distress  thereon,  whereby  the  land-  "the  lessor  or  landlord,  lessors  or 

lords  or  lessors  might  be  satisfied  for  "  landlords,  or  his,  her,  or  their  bailiff 

the  rent  in  arrear ;  but  also  refusing  "  or  receiver,  to  go  upon  and  view 

fo  deliver  up  the  possession  of  the  de-  "the  same,  and  to  affix  or  C*UM  ft 

21 


162 


OP  THE  ACTION  OF  EJECTMENT 


With  respect  to  provisoes  for  re-entry  upon  the  breach 
of  other  conditions,  no  general  principle  can  be  laid  down, 
excepting  that  which  arises  out  of  the  maxim  of  our  law 
that  every  doubtful  grant  shall  be  construed  in  favour  of 
the  grantee ;  namely,  that  the  breach  complained  of  must 
come  within  the  very  letter  of  the  covenant,  or  the  lease 
will  not  be  forfeited  ;  and  the  clearest  method  of  showing 
the  application  of  this  principle  will  be  by  giving  a  short 
digest  of  the  cases  upon  the  subject. 

Where  the  lessee  covenanted  with  the  lessor  not  to 
assign  his  term  without  the  lessor's  consent,  and  afterwards 
devised  his  term  without  such  consent,  it  was  holden  not  to 
amount  to  a  forfeiture,  for  a  devise  is  not  a  /ease.(,r)[3] 


•'  be  affixed,  on  the  most  notorious  part 
"  of  the  premises,  notice  in  writing, 
"  what  day  (at  the  distance  of  four- 
"  teen  days  at  least)  they  will  return 
"  to  take  a  second  view  (hereof  ;  and 
"  if  upon  such  second  view  the  tenant, 
"  or  some  person  on  his  or  her  behalf, 
"  shall  not  appear,  and  pay  the  rent 
'•'  in  arrear,  or  there  shall  not  be  suf- 
"  ficient  distress  upon  the  premises  ; 
"  then  the  said  justices  may  put  the 
"  landlord  or  landlords,  lessor  or  les- 
"  sors,  into  the  possession  of  the  said 
"  demised  premises ;  and  the  lease 
'"  thereof  to  such  tenant,  as  to  any  de- 
"  mi.se  therein  contained  only,  shall 
"  from  thenceforth  become  void." 

Sect.  17.  "  Provided  always,  that 
"  such  proceedings  of  the  said  justices 
"  shall  be  exaininable  in  a  summary 
*{  way,  by  the  next  justice  or  justices 
"  of  assize,  of  the  respective  counties 
'•  in  which  such  lands  or  premises  lie ; 
"  and  it'  they  lie  in  the  city  of  London, 


"  or  county  of  Middlesex,  by  the 
"judges  of  the  courts  of  King's  Bench, 
"  or  Common  Pleas ;  and  if  in  the 
"  counties  palatine  of  Chester,  Lan- 
"  caster,  or  Durham,  then  before  the 
"judges  thereof;  and  if  in  Wales, 
"  then  before  the  courts  of  grand-ses- 
"  sions  respectively ;  who  are  hereby 
"respectively  empowered  to  order  re- 
"stitution  to  be  made  to  such  tenant, 
"  together  with  his,  or  her  expences 
"  and  costs,  to  be  paid  by  the  lessor 
"  or  landlord,  lessors  or  landlords,  if 
"  they  shall  see  cause  for  the  same  j 
'•  and  in  case  they  shall  affirm  the  act 
"of  the  said  justices,  to  award  costs, 
"  not  exceeding  five  pounds,  for  the 
"frivolous  appeal."  The  provisions 
of  this  statute,  however,  like  those  of 
4  Geo.  II.  c.  28.  are  bolden  to  extend 
only  to  cases  where  the  landlord  has 
a  right  of  re-entry  reserved  to  him  by 
the  demise.  Wood,  L.  &.  T.  623. 
(x)  Fox  v.  Swan,  Sty.  482. 


[3]  If  there  is  a  covenant  in  a  lease,  that  lessee  should  permit  no  more  than 


AS  BETWEEN  LANDLORD  AND  TENANT.          163 

Where  the  lessee  covenanted  not  to  demise,  assign,  trans- 
fer, or  set  over,  or  otherwise  do  or  put  away  the  indenture  of 
demise,  or  the  premises  thereby  demised,  or  any  part  there- 
of, to  any  person  or  persons  whatsoever,  and  afterwards 
made  an  under-lease  of  the  premises,  it  was  held  not  to  be 
a  breach  of  the  covenant,  or  a  forfeiture  of  term,  for  an 
under-lease  is  not  an  assignment.  And  it  was  said  by  the 
Court,  in  answer  to  an  argument,  that  although  an  under- 
lease  did  not  amount  to  an  assignment,  yet  that  it  was  a 
transferring,  setting  over,  doing,  or  putting  away,  with  the 
premises  ;  that  the  Courts  have  always  looked  nearly  into 
these  conditions,  covenants,  and  provisoes  ;  that  the  devis- 
ing a  term  was  a  doing  or  a  putting  it  away ;  so  being  in 
debt  by  confessing  a  judgment,  and  having  the  term  taken 
in  execution  was  the  like  ;  but  that  none  of  these  amounted 
to  an  assignment,  or  to  a  breach  of  the  covenant,  or  con- 
dition.(y) 

It  seems  to  have  been  once  holden,  that  if  a  lessee  for 
years  grant  the  lands  to  another  for  the  whole  term  he 
has  therein,  but  reserve  the  rent  payable  to  himself,  and 
not  to  the  original  lessor,  it  will  be  a  lease,  and  not  an  as- 

(y)  Crusoe,  d.  Blencowe,  v.  Rugby,  3  Villa.  234. 


me,  perton  to  every  hundred  acres  of  land  to  reside  on,  use,  or  occupy  the  pre- 
mises, and  the  lessee  lets  part  of  the  premise^  to  persons  for  a  ycnr  to  culti- 
vate on  shares,  it  is  a  breach  of  the  condition.  Jackson  v.  Brownell,  1  Johns 
267.  Jackson  v.  Rich,  7  Johns.  194. 

For  the  object  of  the  provision,  doubtless,  was  to  guard  against  having  too 
great  a  proportion  of  the  land  ploughed  the  same  season,  and  is  for  tin-  l»r- 
nelit  of  husbandry,  and  the  underletting  is,  in  that  point  of  view,  clearly 
against  the  intention  of  the  parties.  Ibid.  But  where  die  quantity  of  land 
demised  was  136  acres,  it  is  not  a  breach  for  the  lessee  to  permit  another  per- 
son besides  himself  to  occupy  the  premises,  for  otherwise  the  covenant  i ;  in  » 
egree  senseless.  Jaclwi  v.  rfgaii,  I  Johns.  273. 


164       OF  THE  ACTION  OF  EJECTMENT 

signment,  notwithstanding  the  want  of  a  reversion  in  the 
party  so  granting ;  but  this  doctrine,  .if  the  decision  were 
as  reported,  has  since  been  overruled.(z) 

Where  the  lease  contained  a  proviso,  that  the  lessee 
should  not  set,  let,  or  assign  over,  the  whole,  or  any  part, 
of  the  premises,  without  leave  in  writing,  on  pain  of  for- 
feiting the  lease,  it  was  held  that  the  lessee  could  not  un- 
derlet without  incurring  a  forfeiture ;  because,  the  word 
over  was  annexed  only  to  the  word  assign  ;  and,  therefore, 
the  condition  was  broken,  if  the  lessee  let  the  premises,  or 
any  part  of  them,  for  any  part  of  the  time.(a)  And  where 
the  proviso  was  not  to  assign,  or  otherwise  part  with  the  pre- 
mises, for  the  whole,  or  any  part,  of  the  term,  the  proviso 
was  held  to  be  broken  by  an  under-lease,  as  well  as  by  an 
assignment.  (6)[4] 


(z)  Poultney  v.  Holmes,  Stran.  405.  to  year,  and  not  as  a  tenancy  for  the 

Palmer  v.  Edwards,  Doug.  187,  in  no-  residue  of  the  term.     Vide   Doe,   d. 

tit.   It  seems,  from  these  cases,  that  a  Rigge,  v.  Bell,  6  T.  R.  471.     Clayton 

parol  assignment  of  the  whole  term,  v.  Blakey,  8  T.  R.  3. 

which  is  void  by  the  statute  of  frauds,  (a)  Roe,  d.  Gregson,  v.  Harrison,  2 

will  be  good  as  an  under-lease ;  but  T.  R.  425. 

quaire  if  the  tenancy  thereby  created  (fe)  Doe,  d.  Holland,  v.  Worseley,  1 

does  not  enure  as  a  tenancy  from  year  Campb.  20. 


[4]  Where  lessee  for  lives,  covenanted  not  to  tell,  dispose  of,  or  assign,  ku 
estate  in  the  demised  premises,  he  was  held  not  to  have  violated  the  covenant 
by  underleasing  the  premises  for  twenty  years,  and  that  nothing  short  of  an 
assignment  of  his  whole  estate  in  the  land  could  work  a  forfeiture.  The  lessee 
conveyed  only  a  lesser  estate  for  years,  out  of  his  larger  estate  for  life,  which 
was  plainly  a  mere  sub-letting,  and  not  a  selling  and  disposing  of,  nor  an  as- 
signing of  his  estate  in  the  premises.  Jackson  v.  Silternail,  15  Johns.  278. 

Nor  would  a  sale  under  an  execution  against  the  lessee  work  a  forfeiture. 
Ibid. 

Where  a  lease  for  seven  years  contains  a  condition,  that  the  lessee  shall 
not  assign  the  premises,  or  any  part  thereof,  the  assignment  of  two  years  of 
the  term  was  held  not  to  be  a  forfeiture,  and  the  words  of  the  lease  held  t» 


A3  BETWEEN  LANDLORD  AND  TENANT.          165 

Where  a  lease  contained  a  proviso  for  re-entry,  in  case 
the  tenant  should  demise,  or  let  the  demised  premises,  or 
any  part  thereof,  for  all  or  any  part  of  the  term  with- 
out license,  and  the  tenant  without  license  agreed  with  a 
person  to  enter  into  partnership  with  him,  and  that  he 
should  have  the  use  of  certain  parts  of  the  premises  ex- 
clusively, and  of  the  rest  jointly  with  him  the  tenant,  and 
accordingly  let  him  into  possession  ;  it  was  hejd  that  the 
lease  was  forfeited  thereby  ;  for  that  it  was  a  parting  with 
the  exclusive  possession  of  some  part  of  the  demised  pre- 
mises, and  whether  it  were  gratuitously,  or  for  rent  reserv- 
ed, was  immaterial. (c) 

A  covenant  not  to  underlet  any  part  of  the  premises 
without  license,  is  not  broken  by  taking  in  lodgers ;  for, 
per  Lord  Ellenborough^  C.  J.  "  The  covenant  can  only 
extend  to  such  underletting  as  a  license  might  be  expect- 
ed to  be  applied  for,  and  whoever  heard  of  a  license  from 
a  landlord  to  take  in  a  lodger  ?'1(e?) 

Where  the  lessee  enters  into  covenants  not  to  assign, 
&c.  the  courts  will  distinguish  between  those  acts  which 
are  done  by  kim  voluntarily,  and  those  which  pass  in 


(c)  Roe,  d.  Dingley,  v.  Sales,  1  M.        (d)   Doe,  d.   Pitt,  v.  Laming,    4 
fa  S.  297.  Caropb.  77. 


mean  an  assignment  of  the  premises,  or  a  part  thereof,  for  the  whole  term. 
Jackson  v.  Harrison,  17  Johns.  66. 

Where,  in  a  lease  in  fee  to  a  man,  and  his  heirs  and  assigns  for  ever,  yielding 
a  certain  yearly  rent,  there  was  inserted  a  covenant  that  lessee  should  not 
alien  without  lessor's  consent,  and  on  every  such  alienation  should  pay  lessor 
one  tenth  of  the  purchase  money  received  on  said  alienation,  and  in  the  lease 
was  a  clause  of  re-entry  for  breach  of  condition,  the  Court  held  the  condition 
valid,  and  not  repugnant  to  the  grant,  and  that  ejectment  would  lie  for  » 
breach.  Jackson  v.  Schuts,  18  Johns.  174. 


166       OF  THE  ACTION  OF  EJECTMENT 


,  and  will  not  hold  the  latter  to  be  a  breach  of  the 
covenant.  Thus,  if  the  lessee  become  bankrupt,  and  the 
term  be  assigned  under  the  commission,  no  forfeiture  will 
be  incurred  ;(e)  unless,  indeed,  there  be  an  express  stipu- 
lation in  the  proviso  that  it  shall  extend  to  the  bankruptcy 
of  the  lessee,  (f)  And  where  a  lessee,  who  had  covenanted 
not  to  "  let,  set,  assign,  transfer,  make  over,  barter,  ex- 
change, or  otherwise  part  with,  the  indenture,"  with  a  pro- 
viso, that  in  such  case  the  landlord  might  re-enter,  after- 
wards gave  a  warrant  of  attorney  to  confess  judgment,  on 
which  the  lease  was  taken  in  execution  and  sold  ;  it  was 
held  to  be  no  forfeiture  of  the  lease,  unless  the  warrant 
of  attorney  were  given  expressly  for  the  purpose  of  having 
the  lease  taken  ;  for  judgments,  in  contemplation  of  law, 
always  pass  in  invitum.  And  Lord  Ktnyon,  C.  J.  said, 
"  there  was  no  difference  between  a  judgment  obtained  in 
consequence  of  an  action  resisted,  and  a  judgment  that  is 
signed  under  a  warrant  of  attorney;  since  the  latter  is 
merely  to  shorten  the  process,  and  lessen  the  expence  of 
the  proceedings  :"  but  if  the  warrant  of  attorney  be  ex- 
pressly given  for  the  purpose  of  having  the  lease  taken  in 
execution,  it  will  be  held  to  be  in  fraud  of  the  covenant. 
and  a  forfeiture  of  the  lease.(g)[5] 

This  protection  extends  also  to  the  party,  to  whom  the 


(e)  Doe,  d.  Goodbthere,  v.  Bevan,        (g)  Doe,  d.  Mitchinson,  y.  Carter, 
3M.&S.353.  T.R.67.  300. 

(/)  Roe,  d.  Hunter,  v.  Colliers,  2 
T.  R.  133. 


[5]  The  same  point  has  been  decided  by  the  Supreme  Court  of  New-York, 
in  Jackson  v.  Corlies,  (7  Johns.  631,  634.)  who  say,  that  it  is  the  province  ol 
the  jury  to  decide,  whether  the  judgment  confessed  by  the  lessee  was  fraudu* 
1«»nt  or  not.  Also  riilc  Jackson  v.  Silvernail,  15  Johns.  278,  280. 


AS  BETWEEN  LANDLORD  AND  TENANT.          167 

term  is  by  law  assigned.  The  reason  of  this  is,  that  such 
assignee  cannot  be  encumbered  with  the  engagement  be- 
longing to  the  property  which  he  takes,  but  must  be  allow- 
ed to  divest  himself  of  it,  and  convert  it  into  a  fund  for  the 
benefit  of  the  creditors  ;  and,  therefore,  a  forfeiture  is  not 
incurred,  if  the  assignees  sell  the  term. (A) 

But  where  one  leased  for  twenty-one  years,  "  if  the 
tenant,  his  executors,  &c.  should  so  long  continue  to  in- 
habit and  dwell  in  the  farm-house,  and  actually  occupy  the 
lands,  &c.  and  not  let,  set,  assign  over,  or  otherwise  de- 
part with  the  lease,"  the  tenant  having  become  bankrupt, 
and  his  assignees  having  possessed  themselves  of  the  pre- 
mises, and  sold  the  lease,  and  the  bankrupt  being  out  of 
the  possession  and  occupation  of  the  farm,  it  was  held, 
that  the  lessor  might  maintain  ejectment.  And  this  case  was 
distinguished  from  the  one  just  mentioned,  as  not  being  a 
case  of  forfeiture ;  but  one  in  which  the  term  itself  was 
made  to  continue  and  depend  upon  the  personal  occupa- 
tion of  the  lessee,  and  that  therefore  the  term  itself  ceased, 
when  the  lessee  had  no  longer  the  occupation  of  the 
farm.(t) 

Where  a  lease  contained  an  exception  out  of  the  demise 
of  all  trees  then  growing,  or  thereafter  to  grow  upon  the 
demised  premises,  and  also  a  proviso,  that  if  the  defendant 
should  commit  any  waste  in  or  upon  the  said  demised  premi- 
ses, it  should  be  lawful  for  the  lessor  to  re-enter;  it  was  held 
to  be  no  forfeiture  of  the  lease,  to  cut  down  the  trees  except- 
ed ;  for  that  waste  could  only  be  committed  of  the  thing  de- 
mised, and  those  trees  being  excepted  out  of  the  demise. 


(/<)  Doe,  d.  Goodbtherc,  r.  Bcctm,        (i)  Doe,  d.  LockwoJ,  T.  Clorke,  8 
3M.  &.S.  868.  Eatt.  186. 


168        OP  THE  ACTION  OP  EJECTMENT 

no  waste  could  be  committed  of  them,  and  consequently  no 
forfeiture,  within  the  provision  of  the  lease,  could  be  in- 
curred by  cutting  them  down.^') 

A  covenant,  "not  to  use  or  exercise,  or  permit,  or  suffer, 
to  be  used  or  exercised,  upon  the  demised  premises,  or 
any  part  thereof,  any  trade  or  business  whatsoever,"  is  bro- 
ken by  an  assignment  to  a  schoolmaster,  who  kept  hie 
school  upon  the  premises. (k) 

Where  a  lease  contained  a  covenant "  to  insure  and  keep 
insured  a  given  sum  of  money  upon  the  premises  during  the 
term,  in  some  sufficient  insurance  office,"  the  covenant 
was  interpreted,  by  reasonable  intendment,  to  mean  insu- 
rance against  fire ;  and  the  lessee,  having  insured  the  proper 
sum,  but  omitted  to  pay  the  annual  premium  within  the  time 
allowed  by  the  office  for  payment,  was  held  to  have  forfeited 
his  lease  upon  a  clause  of  re-entry,  although  he  paid  the 
premium  within  fourteen  days  after  such  time,  and  no  ac- 
tion had  been  commenced,  and  no  accident  had  happened 
by  fire  to  the  premises,  in  the  mean  time.(/)  But  where, 
in  pursuance  of  a  similar  covenant,  the  lessee  effected  an 
insurance  (the  policy  containing  a  memorandum,  that  in 
case  of  the  death  of  the  assured,  the  policy  might  be  con- 
tinued to  his  personal  representative,  provided  an  indorse- 
ment to  that  effect  was  made  upon  it  within  three  months 
after  his  death,)  and  died,  and  the  representative,  after 
the  three  months  had  expired,  but  before  ejectment  brought, 
obtained  the  proper  indorsement,  Lord  Ellenborough,  C. 
.1.  was  of  opinion  that  the  policy  did  not  become  void  for 

(j)  Goodright,  d.  Peters,  v.  Vivian,        (I)   Doe,  d.  Pitt,    T.  Sherwin,   8 
8  Etut,  190.  Catnbp.  194. 

(*)  Doe,  d.  Bith,  T.  Keeling,  M.  k  S. 
95. 


AS  BETWEEN  LANDLORD  AND  TENANT.          169 

want  of  the  indorsement  within  the  three  months,  bul  at 
most  was  only  voidable  by  the  company,  and  ruled,  that 
no  forfeiture  was  incurred.(m) 

A  covenant  in  a  lease  to  deliver  up  at  the  end  of  the 
term  all  the  trees  standing  in  an  orchard  at  the  time  of  the 
demise,  "  reasonable  use  and  wear  only  excepled^  is  not 
broken  by  removing  trees  decayed  and  past  bearing,  from 
a  part  of  the  orchard  which  was  too  crowded.(n) 

A  lease  with  a  clause  of  re-entry,  for  non-performance 
of  covenants  contained  a  general  covenant  on  the  part  of 
the  lessee,  to  keep  the  premises  in  repair;  and  it  was  fur- 
ther stipulated  by  another  independent  Covenant,  that  the 
lessee,  within  three  months,  from  the  time  of  a  notice  to 
repair  being  served  upon  him  by  the  landlord,  should  re- 
pair all  the  defects  specified  in  the  notice  ;  the  landlord, 
after  serving  him  with  a  notice  to  repair,  was  allowed  to 
bring  an  ejectment  against  him  within  the  three  months,  for 
a  breach  of  the  general  covenant  to  repair.(o)[GJ 

Where  a  lease,  rendering  rent,  contained  a  covenant  that 
the  lessee  should  not  assign  without  leave  of  the  lessor, 
after  which  covenant  was  a  proviso,  that  if  the  rent  should 
be  in  arrear,  or  if  all  or  any  of  the  covenants  thereinafter 
contained  on  the  part  of  the  lessee,  should  be  broken,  it 
should  be  lawful  for  the  lessor  to  re-enter,  and  there  were 


(m)   Doe,  A.   Pitt,  v.    Teaming,  4        (o)  Roe,  d.    Goatley,  v.  Paine,  2 
Carnpb.  76.  Cainpb.  520. 

(n)    Doe,  d.   Jones,  v.    Crouch,  2 
('ainpb.  449. 


[6]  \Vhorc  lessee  covenants  to  pay  all  taxes,  plaintiff  must  show  a  demand 
of  the  tax.     Jack-son  v.  Harrison,  IT  Johns.  W. 

22 


170  OF  THE  ACTION  OF  EJECTMENT 

no  covenants  on  the  part  of  the  lessee  after  the  proviso,  but 
only  a  covenant  by  the  lessor,  that  the  lessee  paying  rent. 
and  performing  all  and  every  the  covenants  thereinbefore 
contained  on  his  part  to  be  performed,  should  quietly  en- 
joy ;  it  was  held  that  the  lessor  could  not  re-enter  for 
breach  of  the  covenant  not  to  assign,  the  proviso  being  re- 
strained by  the  word  ''hereinafter"  to  subsequent  covenants  ; 
and  although  there  were  none  such,  yet  the  court  could 
not  reject  the  word. 


Where  a  beneficial  long  lease  reserved  to  the  lessee  the 
liberty  to  cut  down  and  dispose  of  all  timber,  &c.  then 
growing,  or  thereafter  to  grow  during  the  term,  subject  to 
the  following  proviso,  that  when  and  so  often  as  the  lessee 
should  intend,  during  the  term,  to  fell  timber,  &c.  he  should 
immediately  give  notice  in  writing  to  the  lessor  of  such  in- 
tention, who  should  thereupon  have  the  option  of  purchas- 
ing it,  with  a  power  of  re-entry,  in  case  of  a  breach  of  this 
proviso,  and  the  lessee,  soon  after  the  execution  of  the 
lease,  (at  that  time  intending  bona  fide  to  cut  down  the 
whole  of  the  then  growing  timber,)  gave  the  proper  notice 
in  writing  to  the  lessor,  who  did  not  accept  the  purchase, 
but  disclaimed  it  ;  the  lease  was  not  forfeited,  although  the 
lessee  did  not  forthwith  fell  all  the  timber,  &c.  but  pro- 
ceeded to  cut  down  the  same  in  different  seasons,  at  his  own 
convenience,  without  giving  any  fresh  notices  to  the  lessee, 

(p)  Dot  d.  Spencer,  v.  Godwin,  4  M.  &.  S.  265. 


[7]  Where,  at  the  bottom  of  a  lease  containing  a  clause  of  re-entry,  lessee 
agreed  not  to  make  any  alterations  in  the  buildings,  it  was  held  to  be  a  mere 
covenant,  and  not  a  condition  for  a  breach  of  which  the  lease  was  to  be  for- 
feited. Jackson  v.  Harrison,  17  Johns.  66. 


AS  BETWEEN  LANDLORD  AND  TENANT.    171 

or  his  assignee,  to  whom  he  had,  previously  to  the  last  cut- 
tings, conveyed  his  interest. (q) 

In  all  these  cases,  the  tenancy  was  created  by  deed  :  but 
the  principle  is  the  same  if  the  tenant  holds  under  an  agree- 
ment for  a  lease,  which  specifies  the  covenants  to  be  in- 
serted in  the  lease,  and  that  there  shall  be  a  power  of  re- 
entry for  a  breach  of  them. (r) 

Next  of  the  means  by  which  a  covenant  may  be  dispen- 
sed with.[8] 

To  enable  a  reversioner(s)  to  take  advantage  of  a  for- 
feiture, it  is  necessary  that  he  should  have  the  same  estate 
in  the  lands  at  the  time  of  the  breach,  as  he  had  when  the 
condition  was  created  ;  an  extinguishment  of  the  estate  in 
reversion,  in  respect  of  which  the  condition  was  made,  ex- 
tinguishing the  condition  also.(f)  Thus,  where  a  lease  was 
made  for  a  hundred  years,  and  the  lessee  made  an  under- 
lease for  twenty  years,  rendering  rent,  with  a  clause  of  re- 
entry, and  afterwards  the  original  lessor  granted  the  rever- 
sion in  fee,  and  the  grantee  purchased  the  reversion  of  the 

(9)   Goodlitte,  d.  Litxmore  v.    Sa-  (r)   Doe,  d.  Oldcrthaio  v.  Breach,  6 

ville,  16  East,  87.  Lord  Ellenborough,  Esp.  106. 

C.  J.,  and  Le  Blanc,  J.,  intimated  an  (*)  For  covenants  upon  which  the 

opinion,  that  a  Court  of  equity  would  ;i--!  ;nc  of  reversion  may   sue.    VLlr 

probably,  under  Uie    circiu, stances,  ante,  74. 

give  the  lessor  or  his  assignee  a  now  (/)  Dumpor's  case,  4  Co.  120(6). 
option  to  purchase. 


[8]  Where  a  lessee  disclaims  all  holding  under  the  lessor,  it  will  work  a 
forfeiture  of  the  lease ;  but  where  a  plaintiff  in  replevin  denies  in  his  plea, 
that  the  place  in  which  the  distress  was  taken  was  within  the  demised  pre- 
mises, surh  denial  docs  not  amount  to  such  a  disclaimer  as  to  work  a  forfei- 
ture. Jackson  v.  llog.cn,  1 1  Johns.  33,  35. 


172  OF  THE  ACTION  OF  EJECTMENT 

term,  it  was  holden,  that  the  grantee  should  not  have, 
either  the  rent,  or  the  power  of  re-entry;  for  the  rever- 
sion of  the  term  to  which  they  were  incident  was  extin- 
guished in  the  reversion  in  fee.(w.) 

The  rcversioner  must  also  be  entitled  to  the  reversion, 
at  the  time  the  forfeiture  is  committed,  or  he  cannot  take 
advantage  of  it.(r) 

When  the  condition  is,  that  the  lessee  will  not  do  any 
particular  act  without  leave  from  his  lessor,  if  leave  be 
once  granted,  the  condition  is  gone  for  ever ;  for  the  con- 
dition is  to  be  taken  strictly,  and  by  the  license  it  is  satis- 
fied.(a;)  And,  in  like  manner,  when  a  condition  is  entire, 
a  license  to  dispense  with  a  part  of  the  condition  is  a  dispen- 
sation of  the  whole.  As  where  the  lease  contains  a  clause, 
that  the  lessee  shall  not  assign  without  leave  from  his  les- 
sor, the  lessee,  under  a  license  to  assign  part  of  the  pre- 
mises, may  assign  the  whole  without  incurring  a  forfei- 
ture.(a;)  But  the  license  must  be  such  as  is  required  by 
the  lease  ;  and,  therefore,  where  the  lease  required  the  li- 
cence to  be  in  writing,  a  parol  licence  was  held  to  be  insuf- 
ficient, (x) 

Provisoes  for  re-entry  are  also  construed  strictly  with 
respect  to  the  parties  who  may  take  advantage  of  them, 
and  only  include  the  persons  who  are-  expressly  named. 
Thus,  a  power  for  C.  to  enter  will  not  extend  to  his  execu- 


(«)  Thre'r  v.  Barton,  Moore,  94.  (to)  Dumper  v.  Syrns,  Cro.  Eliz. 
Webb  v.  Russell,  3  T.  R.  393.  402.  815.  S.  C.  4  Co.  1 19.(6) 

(r)  Fenn,  d.  Mattkews,  v.  Smart,  12  (z)  Roe,  d.  Gregson  v.  Harrison,  2 
East,  444.  T.  R.  425.  Seers  v.  Hintl,  1  Ver. 

jun.  294. 


AS  BETWEEN  LANDLORD  AND  TENANT.         173 

tor.(r)  And  it  seems,  also,  that  if  a  lessee  covenant  with 
his  lessor,  that  he  will  not  assign,  £c.  a  covenant  so  framed 
will  not  extend  to  his  executors  or  administrators,  although, 
if  the  executors  or  administrators  be  mentioned  in  the 
clause,  they  will  be  bound  by  it.(#) 

A  power  of  re-entry  cannot  be  reserved  to  a  stranger  ;(z) 
and  where,  in  a  building  lease,  a  trustee  and  his  cestui  qut 
trust  were  both  demising  parties,  and  the  power  of  re-entry 
was  reserved  to  both,  and  the  state  of  the  title  appeared  in 
the  recitals  in  the  lease,  the  court,  without  argument,  held 
the  proviso  to  be  void.(a) 

A  forfeiture  of  a  lease  for  a  breach  of  covenant  may  be 
waived,  as  well  as  a  forfeiture  for  non-payment  of  rent,  or 
a  notice  to  quit ;  that  is  to  say,  if  the  landlord  do  any  act, 
with  knowledge  of  the  covenant  being  broken,  which  can 
be  considered  as  an  acknowledgment  of  a  tenancy  still 
subsisting  ;  as,  for  example,  if  he  receive  rent  accruing  sub- 
sequently to  the  forfeiture, (6)  unaccompanied  by  circum- 
stances which  show  a  contrary  intention. (c)  But  where  a 
right  of  entry  was  given  in  three  months  after  notice  of  the 
premises  being  out  of  repair,  and  the  landlord  gave  notice, 
and  afte"r  the  three  months  had  expired,  accepted  rent-ac- 
cruing after  such  expiration,  and  then  brought  an  eject- 
ment, the  premises  being  still  out  of  repair,  Lord  Kenyan, 
C.  J.  was  of  opinion,  that  the  right  of  re-entry  was  only 
waived  up  to  the  period  for  which  the  rent  was  received, 

(x)  Hostel  d.  Hodsonv.  Gowthtcaite,  (a)  Doe,  d.  Barber  v.  Laurence,  4 

Willcs,  500.  Taunt.  23. 

(y)  Roe,  d.  Greg.ton,  v.  Harrison,  2  (6)  Fox,  v.  Sicann,  Styles,  482.  Good- 

T.  R.  425.  Seer*  v.  Hitule,  I  Vez.  jun.  right,  d.  Walter,  v.  Davids,  Cowp.  803. 

294.  (c)  Anlt,  13t». 

(a)  Co.  Lilt.  214. 


174  OF  THE  ACTION  OF  EJECTMENT 

and  that  the  lessor  was  entitled  to  recover,  upon  a  demise 
laid  subsequently  to  that  time.  The  jury,  however,  found 
a  verdict  for  the  defendant,  and  the  court  afterwards  dis- 
charged a  rule,  which  the  lessor  of  the  plaintiff  obtained  in 
the  next  term,  for  a  new  trial. (d) 

But  a  waiver  of  one  forfeiture  incurred  by  breach  of  co- 
venant, will  not  be  a  waiver  of  a  second  forfeiture  incurred 
by  another  breach  of  the  same  covenant.  And,  therefore, 
where  a  right  of  re-entry  was  reserved  on  a  breach  of  co- 
venant not  to  under-let,  it  was  held,  that  the  lessor  was  en- 
titled to  re-enter  upon  a  second  under-letting,  although  he 
had  waived  his  right  so  to  do  upon  the  first.(e)  It  is  also 
necessary  that  some  positive  act  of  waiver  should  take 
place.  The  landlord  will  not  lose  his  right  to  re-enter,  by 
merely  lying  by,  (however  long  the  period,)  and  witnessing 
the  act  of  forfeiture  ;  but  it  seems,  that  if,  with  full  know- 
ledge thereof,  he  permits  the  tenant  to  expend  .money  in 
improvements,  it  is  a  circumstance  from  which  the  jury 
may  presume  a  waiver,  as  well  as  ground  for  application  to 
a  court  of  equity  for  relief.(/) 

It  seems  scarcely  necessary  to  observe,  that  no  act  of  the 
landlord  will  operate  as  a  confirmation  of  a  lease,  rendered 
voidable  by  a  breach  of  covenant,  unless  he  had  full  no- 
tice at  the  time  of  such  act,  that  the  forfeiture  had  been 
committed.(g) 

Before  quitting  this  branch  of  our  subject,  it  is  necessary 
to  notice  a  material  distinction  which  prevails  between 

(d)  Fryett,  d.  Harris,  v.  Jeffreys,  1  (/)  Doe,  d.  Sheppard,  v.  Mtn,  3 
Esp.  393.  Taunt.  78. 

(e)  Doe,  d.  Boscnwen,  v.  Blits,  4  (g)  Roe,  d.    Gregson,  v.  Harriton, 
Taunt.  736.  2T.  R.425. 


AS  BETWEEN  LANDLORD  AND  TENANT.          175 

leases  for  lives,  and  leases  for  years,  as  to  the  consequences 
of  a  forfeiture,  when  the  proviso,  upon  which  the  forfeiture 
occurs,  declares  the  lease  "  to  be  null  and  •void,'1'1  or,  "  to 
cease  and  determine,"  &c.  upon  the  breach  of  the  condition, 
instead  of  being  expressed  in  the  common  form,  "  that  it 
shall  and  may  be  lawful  for  the  lessor,  in  such  case,  to  re- 
enter."  In  leases  for  lives,  whatever  may  be  the  words  of 
the  condition,  it  is  in  all  cases  held,  that  if  the  tenant  be 
guilty  of  any  breach  of  the  condition  of  re-entry,  the  lease 
is  voidable  only,  and  not  void  ;  and,  therefore,  not  deter- 
mined until  the  lessor  re-enters,  that  is,  brings  an  eject- 
ment for  the  forfeiture.  Because,  when  an  estate  com- 
mences by  livery,  it  cannot  be  determined  before  entry  ; 
and,  consequently,  if  the  lessor  do  any  act  which  amounts 
to  a  dispensation  of  the  forfeiture,  the  lease,  which  before 
was  voidable  only,  is  thereby  affirmed,  and  the  forfeiture 
waived.  But  when  clauses  of  the  same  import,  as  those 
first  above  mentioned,  are  inserted  in  leases  for  years,  if 
the  lessee  be  guilty  of  any  breach  of  the  condition  of  re- 
entry, the  lease  becomes  absolutely  void,  and  determined 
thereby  ;  and  cannot  be  again  set  up  l>y  any  subsequent 
act  of  the  lessor.  When,  however,  a  lease  for  years  con- 
tains the  common  proviso,  namely,  "  that  it  shall  and  may 
be  lawful  for  the  lessor  to  re-enter,"  or  a  proviso,  "  that  the 
term  shall  cease  and  determine,  if  the  lessor  please  "(h)  the 
lease  will  be  only  voidable  by  a  breach  of  covenant ;  and 
the  forfeiture  may  then  be  waived  by  a  subsequent  acknow- 
ledgment of  a  tenancy,  in  the  same  manner  as  in  all  cases  of 
leases  for  lives. (i) 

A  proviso  in  a  lease  to  re-enter  for  a  condition  broken, 


(h)  Doe,  cl.  Brutmc,  v.  Old,  K.  B.         (»)    Co.  Lift.  215,  (n).   Pennant's 
Sittings  after  T.  T.  1814.  M.  S.  case,  3  Co.  64,  65. 


176       OF  THE  ACTION  OF  EJECTMENT 

operates  only  during  the  term,  and  cannot  be  taken  advan- 
tage of  after  its  expiration.  Thus,  where  a  lease  for  ninety- 
nine  years,  if  A.  and  B.  should  so  long  live,  was  granted, 
with  a  proviso  giving  the  power  of  re-entry,  in  case  the 
lessee  should  under-let  the  premises  for  the  purpose  of 
tillage,  and  an  under-tenant  of  the  lessee  ploughed  up,  and 
sowed  the  land,  but  the  lessor  did  not  enter  during  the 
continuance  of  the  estate ;  it  was  held  in  an  action  of 
trespass  by  the  lessor  against  the  under-tenant,  for  enter- 
ing upon  the  land,  after  the  determination  of  the  estate,  for 
the  purpose  of  carrying  off  the  emblements,  that  the  plain- 
tiff, having  never  been  in  possession  by  right  of  re-entry  for 
condition  broken,  could  have  no  advantage  thereof,  and 
that  the  defendant,  who  ploughed  and  sowed  the  land,  was 
entitled  to  take  the  emblements. (j) 

(j)  Johns  v.  Wh'ilhy,  3  Wils.  127. 


177 


CHAPTER   VI. 


OF  THE  ANCIENT  PRACTICE ;  AND  THE  CASES  IN  WHICH 
IT  IS  STILL  NECESSARY. 


WHEN  the  remedy  by  ejectment  is  pursued  in  an  in- 
ferior court,  the  fictions  of  the  modern  system  are  not  ap- 
plicable, for  inferior  courts  have  not  the  power  of  framing 
rules  for  confessing  lease,  entry,  and  ouster,  nor  the  means, 
if  such  rules  were  entered  into,  of  enforcing  obedience  to 
them.(£)  When,  also,  the  premises  are  vacated,  and  whol- 
ly deserted  by  the  tenant,  and  his  place  of  residence  is 
unknown, (/)  the  modern  practice,  for  reasons  which  will 
be  noticed  in  a  subsequent  chapter,(m)  cannot  be  adopted. 
When,  therefore,  the  party  brings  his  action  in  a  superior 
court,  the  possession  being  vacant,(n)  and  the  lessor's 

(it)   The  Kins;  v.  Mayor  of  Briftow,  (I)  Strict  proof  of  this  fact  will  be 

1   Keb.  690.     Sherman   v.   Cocke,   1  required  ;  and  if  it  appear,  that  the 

Keb.  795.     It  is  said  by  Gilbert,  C  B.  premises  were  not  wholly  deserted,  or 

that  if  the  defendant,  in   an  inferior  that  the  plaintiff's  lessor  knew  where 

court,  enter  into   a   rule   to  confess  the  tenant  lived,  a  judgment  obtained 

lease,  Lc.  and  the  cause  be  removed,  by  means  of  the  ancient  practice  will 

and  the  judge  of  the  inferior  court  be  set  aside.     A    very    little  matter 

grant  an  attachment  against  the  de-  has  been  held  sufficient  to  keep  pos- 

fendant  for  disobedience  to  the  rule,  session,   such   as,  leaving  beer  in  a 

the  superior  court  will  grant  an  at-  cellar,  or  hay  in  a  barn.  (.Savage  v. 

tiu-hmcnt   against  the  judge,  for  ex-  Dent,  Stran.  1064.  Jones,  d.  (jrijfitlis, 

ceeding  his  authority,  and  obstructing  v.  March,  4  T.  R.  464.) 

the    course  of    the    superior   court.  (m)  Chap.  VII. 

Cttilh.  Eject.  38.)  (n)  Appendix,  No.  7. 

23 


178  OF  THE  ANCIENT  PRACTICE. 

abode  unknown,  and  when  he  is  desirous  of  trying  his  title 
in  a  court  of  inferior  jurisdiction,  all  the  forms  of  the  an- 
cient practice  must  be  observed :  a  lease  must  be  sealed 
upon  the  premises  ;  an  ouster  actually  made ;  and  the 
parties  to  the  suit  will  be  real,  and  not  imaginary  persons. 

The  manner  of  proceeding  in  these  cases  is  as  follows. 
A,  the  party  claiming  title,  must  enter  upon  the  laud  be- 
fore the  essoign-day  of  the  term  of  which  the  declaration 
is  to  be  entitled,  and  whilst  on  the  premises,  execute  a 
lease  of  them  to  B.(any  person(o)  who  may  accompany  him,) 
at  the  same  time  delivering  to  him  the  possession  by  some 
one  of  the  common  modes.  C.  (some  other  person)  must 
then  enter  upon  the  premise's,  and  eject  B.  therefrom ;  and 
having  done  so,  must  remain  upon  them,  whilst  B.  delivers 
to  him  a  declaration  in  ejectment,  founded  upon  the  de- 
mise contained  in  the  lease ;  and,  in  all  respects,  like  the 
declaration  in  the  modern  proceedings, (p)  except  that  the 
parties  to  it  are  real  instead  of  fictitious  persons ;  B.  being 
made  the  plaintiff,  A.  the  lessor,  and  C.  the  defendant.  To 
this  declaration,  a  notice  must  be  added,  signed  by  .B.'s 
attorney,  and  addressed  to  C.,  requiring  him  to  appear  and 
plead  to  the  declaration,  and  informing  him  that  if  he  do 
not,  judgment  will  be  signed  against  him  by  default.(<7)[9] 

(o)   Attornies  form  an  exception  to  tainance  and   brocage,   no  attorney 

this  statement ;  for,  by  the  rules  of  B.  shall  be  lessee  in  an  ejectment." 

R.  and  C.  B.  (M.  T.  1654.)  it  is  order-  (p)  Appendix,  No.  12. 

ed  "  that  for  the  prevention  of  main-  (q)  Appendix,  No.  8. 

[9]  The  strict  principles  relative  to  proceedings  in  ejectment  for  a  vacant 
possession  in  England,  do  not  apply  to  the  unsettled  lands  in  this  country. 
So  the  Holland  Land  Company  were  let  in  to  defend,  where  a  lease  had  been 
sealed  on  the  premises.  Saltvnstall  v.  U'/iiif,  1  Johns.  Cas.  221. 

But  defendant,  in  such  case,  must  stipulate  to  admit,  that  he  was  in  pos- 
session at  the  time  of  the  commencement  of  the  suit  Wood  v.  Wood,  9  Johns. 
258. 


OF  THE  ANCIENT  PRACTICE.         179 

When  the  landlord,  or  person  claiming  title,  does  not 
wish  to  go  through  this  eeromony  himself,  he  may  execute 
a  power  of  attorney,  authorizing  another  to  enter  for  him ; 
(r)  and  the  proceedings  are  then  the  same  as  if  he  himself 
entered.  But  it  must  be  remembered,  that  if  it  be  neces- 
sary, when  the  ancient  practice  is  used,  to  join  the  wife  in 
the  demise,  the  lease  must  be  executed  by  the  husband  and 
wife,  in  their  proper  persons,  because  a. feme  covert  cannot 
constitute  an  attorney. (s) 

When  the  ancient  practice  is  resorted  to,  the  suit  must 
proceed  in  the  name  of  the  casual  ejector,  and  if  the  pro- 
ceedings are  in  a  superior  court,  no  person  claiming  title 
will  be  admitted  to  defend  the  action.  If,  therefore,  in 
such  case,  the  right  to  the  premises  be  disputed,  the  party 
who  seals  the  lease  must,  in  the  first  instance,  recover  the 
possession,  and  the  other  party  must  afterwards  bring  a 
common  ejectment  against  him,  to  try  the  title. (t) 

When  the  proceedings  are  in  the  King's  Bench,  an  affi- 
davit must  be  made  («)  of  the  sealing  of  the  lease,  ouster 
of  the  plaintiff,  &c. ;  and  upon  this  affidavit  a  motion  is 
made  for  judgment  against  the  defendant,  and  unless  he 
appears  and  pleads,  judgment  will  be  signed  against  him, 
upon  moving  the  court,  as  in  a  common  ejectment.(z;) 

In  the  Common  Pleas,  this  affidavit  and  motion  are  un- 
necessary, and  instead  of  them  a  rule  to  plead  must  be  given 

(r)  2  Sell.  Prac.  131.     Appendix,         (/)  Ex  pnrle  Beauchnmp  and  Burly 

A\os.  6  and  6.  Barn.  177.  B.  N.  P.  96. 
(3)  Wilson  v.  Rich,   1  Yelv    1  S.  C.         (u)  Appendix,  No.  9. 

1  Brown,  134.     Plomer  v.  Hockhtod,         (v)  Smart  ley   v.    Ifenden,   1    Salt. 

2  Brown,  248.  S.  C.  Noy.  133.     Sed  256.     2  Sell.  Prac.  1*1. 
vide  Hopkins,    cage  Cro.    Car.    165. 

Gardiner  T.  Ataman,  Cro.  Jac.  617. 


180  OF  THE  ANCIENT  PRACTICE. 

on  the  first  day  of  term,  as  in  other  actions,  and  if  there 
be  no  appearance  and  plea  at  the  expiration  of  the  rule, 
judgment  may  be  signed.(zc) 

It  is  immaterial,  as  far  as  the  forms  of  sealing  the  lease, 
&c.  are  concerned,  whether  the  action  be  commenced  in 
a  superior,  or  inferior  court ;  but  the  subsequent  proceed- 
ings in  inferior  courts  must,  of  course,  depend  upon  the  ge- 
neral practice  in  them  in  other  actions,  and  cannot  form  a 
part  of  this  treatise.  How  far  it  may  even  be  necessary  to 
give  the  tenant  in  possession  notice  of  the  claimant's  pro- 
ceedings, in  an  ejectment  brought  in  an  inferior  court,  may 
appear  doubtful,  when  it  is  remembered,  that  such  notice 
was  only  requisite  in  the  superior  courts,  in  consequence 
of  a  rule  made  for  that  particular  purpose  ;(;r)  but  it  cer- 
tainly is  more  prudent  to  conform  to  the  general  prac- 
tice in  this  respect,  and  the  notice  need  not  to  be  given 
until  after  the  entry,  and  execution  of  the  lease. (y) 

It  seems,  that  an  ejectment  cannot  be  removed  from  an 
inferior  to  a  superior  court,  except  by  a  writ  of  habeas 
corpus ;  but  it  is  difficult  to  discover  the  principle,  upon 
which  the  writ  of  certiorari  is  considered  insufficient.(z) 

When  an  ejectment  is  removed  from  an  inferior  to  a  su- 
perior court,  the  tenant  in  possession  is  entitled  to  the  same 
privilege  of  confessing  lease,  entry,  and  ouster,  and  de- 
fending the  action,  as  if  the  plaintiff  had  originally  de- 
clared in  the  superior  court.(a) 

When  the  lands  lie  partly  within  and  partly  without -the 

(w)  2  Sell.  Prac.  131.  (z)  Highmore  v.  Barlow,  Barn.  421. 

(z)  Ante,  II.  Men  \.  Foreman,  1  Sid.  313. 

(y)  1  Lill.  Pr.  Reg.  676.  («)  Gilb.  Eject.  37. 


OF  THE  ANCIENT  PRACTICE.  181 

jurisdiction  of  the  inferior  court,  the  defendant  cannot  plead 
above  the  jurisdiction  of  such  inferior  court,  because  the 
demise  is  transitory,  and  may  be  tried  any  where. (6) 

As  the  plaintiff,  in  the  ancient  practice,  is  a  person  ac- 
tually in  existence,  his  death  would,  of  course,  abate  the 
action  according  to  the  general  rules  of  law ;  but  as  the 
courts  look  upon  the  lessor  of  the  plaintiff  to  be  the  person 
concerned  in  interest,  they  will  not  suffer  him  to  be  de- 
prived of  his  remedy,  by  such  an  event.  If,  therefore, 
there  be  any  one  of  the  same  name  with  the  plaintiff,  he 
will  be  presumed  to  have  been  the  person  ;  and  it  has  also 
been  held  to  be  a  contempt  of  the  court,  to  assign  for  er- 
ror the  nominal  plaintiff's  death,  (c) 

In  like  manner,  before  the  introduction  of  the  modern 
practice,  it  was  said,  that  if  the  plaintiff  released  to  one  of 
the  tenants  in  possession,  who  had  been  made  defendant, 
such  release  would  be  a  good  bar,  because  the  plaintiff 
could  not  recover  against  his  own  release,  since  he  was  the 
plaintiff  upon  the  record  5  but  the  courts  considered  such  a 
release  as  a  contempt,  and  it  does  not  appear  that  a  plea 
of  this  nature  ever  occurred  in  practice. (d) 

The  casual  ejector  is,  also,  in  the  ancient  practice  a  real 
person,  but  the  court  will  not  allow  him  to  confess  judg- 
ment ;  and  where,  upon  proceedings  on  a  vacant  posses- 
sion, the  casual  ejector  gave  a  warrant  of  attorney  for  this 
purpose,  the  court  set  the  judgment  aside. (e) 

Where  an  action  of  ejectment,  and  an  action  of  assault 

(b)  Hall  T.  Hugh*,  2  Keb.  69.  Anon.  Salk.  260.     Vide  Doe,  d.  Bync, 

(e)  Moore  v.  Goodrigti,  Stran.  899.    v.  Brewer,  4  M.  fc.  S.  300. 

(d)  Peto  v.  Checy,  2  Brown,  128.        (e)  Hooper  v.  Dale,  Stran.  531. 


182         OF  THE  ANCIENT  PRACTICE. 

and  battery,  were  joined  in  the  same  writ,  after  verdict  it 
was  moved  in  arrest  of  judgment,  because  it  was  without 
precedent ;  but  the  court  seemed  to  think  the  misjoinder 
cured  by  the  verdict.(/) 

(/)  Bird*.  Sndl,  Hob.  249.  et  vide  Gilb.  Eject.  62. 


183 


CHAPTER  VII. 


OF  THE  DECLARATION  IN  THE  MODERN  ACTION  OF  EJECT- 
MEJNT,  AND  NOTICE  TO  APPEAR. 


THE  proceedings  in  the  modern  action  of  ejectment 
being  founded  in  fiction,  and  regulated  altogether  by  the 
courts  of  common  law,  a  system  of  practice  has  gradually 
been  formed,  adapted  to  the  uses  of  the  particular  remedy, 
but  for  the  most  part  independent  of  the  general  practical 
regulations  in  other  actions.  The  singularity  of  the  modern 
practice  has,  indeed,  occasioned  it  to  be  denominated  a 
string  of  legal  fictions  ;  and  the  remedy  itself  has  fre- 
quently been  called  a  child  and  creature  of  the  Court. 

To  enable  a  party  claiming  title  to  lands,  to  take  ad- 
vantage of  the  modern  method  of  bringing  an  ejectment,  it 
is  necessary,  as  we  have  already  observed. (g)  that  a  per- 
son should  be  in  possession  of  the  premises  in  question  5 
that  is  to  say,  that  they  should  not  be  vacated  and  alto- 
gether destrted  ;(h)  or  at  least  (supposing  them  to  be  so  de- 
serted) that  the  residence  of  the  last  tenant  be  not  un- 
known to  the  claimant. (t)  This  arises  from  a  particular 
regulation  of  the  modern  practice,  which  requires  an  a  Hula - 

(ft)  Ante,  177.  arc  created,  in  particular  cases,  by 

(h)   Savage   v.   Dent,  Stran.   1064.  the  provisions  of  the  statutes  4  Geo. 

:fonu,d.  Griffiths,  v  JfanA,4T  R  464.  II.  c.  28      11    Geo.  II.    c.  19.     Vide 

(t)  Exceptions  to  this  general  rule  unit,  150.  161. 


184  OF  THE  DECLARATION. 

vit  of  the  service  of  a  declaration  in  ejectment  upon  the 
tenant  in  possession,  before  judgment  can  be  obtained 
against  the  casual  ejector;  and  as  this  service  cannot,  of 
course,  take  place,  when  a  tenant  does  not  exist,  the  neces- 
sary affidavit  cannot  then  be  made,  but  the  claimant  is 
compelled  to  resort  to  the  ancient  practice. 

With  this  single  exception,  however,  a  claimant  in  eject- 
ment may  always  proceed,  in  the  superior  courts,  by  the 
modern  method. 

The  suit  is  commenced  by  the  delivery  of  the  declara- 
tion against  the  casual  ejector,  to  the  tenant  in  posses- 
sion ;  for,  as  the  plaintiff  and  defendant  in  the  action, 
are  only  fictitious  persons,  the  suing  out  of  a  writ  would  be 
an  useless  form.  This  declaration  is,  in  fact,  in  itself  a  kind 
of  writ,  or  process ;  and  is  the  only  means  by  which  the 
party  in  possession  is  informed  of  the  claim  set  up  by  the 
lessor,  and  required  to  appear  and  defend  his  title. (j) 

The  declaration,  when  the  proceedings  are  in  the  King's 
Bench,  may  be  framed  to  answer  either  to  an  action  com- 
menced by  bill,  or  by  original,  but  the  latter  is  the  prefer- 
able and  most  common  method ;  because  the  action  is  then 
considered  by  the  Court,  as  though  it  actually  had  been 
commenced  by  original,  and  no  writ  of  error  can  be  brought 
thereon  except  in  Parliament.  In  the  Common  Pleas,  the 
declaration  is,  of  course,  always  framed  as  if  the  proceed- 
ings were  by  original.(k) 


(j)  A  declaration  in  ejectment  is  tenant  at  the  time  of  its  delivery.  Rex 

go  far  considered  a  process  of  the  v.  Unitt,  Stran.  667. 
court,  that  the  court  will  punish  as  a        (&)  Appendix,  No.  12.  14,  1~> 
contempt  any  improper  conduct  of  the 


OP  ENTITLING  THE  DECLARATION.  185 

The  declaration  should  regularly  be  entitled  of  the  term 
immediately  preceding  the  vacation  in  which  it  is  deliver- 
ed ;  but  if  it  be  not  entitled  of  any  term,  the  omission  will 
be  immaterial,  provided  the  tenant  has  sufficient  notice 
given  him  therein  to  appear  to  the  action.  As  where  the 
declaration  was  delivered  before  the  essoiga  day  of  Hilary 
term,  and  the  notice  at  its  foot  was  dated  Jan.  1,  1818,  and 
was  to  appear  within  the  four  first  days  of  the  next  term.(/) 

With  respect  also  to  the  term  of  which  the  declaration 
against  the  casual  ejector  may  be  entitled,  a  striking  dissi- 
milarity from  the  practice  in  all  other  actions  prevails.  The 
demise  stated  in  the  declaration,  is  the  title  upon  which 
the  plaintiff  is  supposed  to  enter,  and  the  ouster  the  sup- 
posed wrong  for  which  the  action  is  brought.  The  plain* 
tiff  has,  consequently,  no  cause  of  action  antecedently  to 
the  day  of  the  ouster ;  arid  according  to  the  general  rules 
of  pleading,  could  not  entitle  his  declaration  anterior  to 
that  time.  But  it  is  otherwise  in  an  ejectment ;  for  the 
defendant  being  a  nominal  person,  cannot  take  advantage 
of  the  objection,  and  if  the  tenant  appear,  and  apply  to  be 
admitted  a  defendant  instead  of  the  casual  ejector,  he  will 
be  compelled  by  the  consent  rule  to  accept  a  declaration 
entitled  of  a  subsequent  term.  Therefore,  if  the  demise 
be  laid  in  the  vacation  time,  and  the  declaration  against 
the  casual  ejector  be  entitled  of  the  preceding  term,  it 
will  be  sullicient ;  because,  if  the  party  in  possession  dc- 
tmd  tli*1  action,  the  declaration  against  him  (as  will  be  ex- 
plained hereafter)  will  be  entitled  of  the  subsequent  term; 
and  if  he  leave  the  suit  undefended,  judgment  will  be  taken 
out  against  the  casual  ejector.^//*) 

(I)  Goodtitle,  d.  Price,  v.  Badtitlc,        (m)  Imp.  K.  B.  642.      1  Lill.  Prac. 
H.  T.  1818.  K.  B.— M.S.  Reg.  680.     Turutall  v.  Brcnd,  2  Vent. 

174. 
24 


186  OF  THL  VENUE. 

The  venue  in  ejectment  is  local,  and  confined  to  the 
county  in  which  the  lands  are  situated. (n) 

The  demise  declared  upon  by  the  plaintiff,  in  the  mo- 
dern practice,  is  fictitious  only  ;  but  still  it  must  be  con- 
sistent with  the  title  of  his  lessor ;  that  is  to  say,  such  a 
demise  must  be  supposed  to  be  made,  as  would,  if  actually 
made,  have  transferred  the  right  of  possession  to  the  lessee. 
Thus,  if  there  be  several  lessors,  and  a  joint  demise  by 
them  all  be  alleged,  such  a  title  must  be  shown  at  the  trial, 
as  would  enable  each  of  them  to  demise  the  whole ;  be- 
cause, if  anyone  of  the  lessors  have  not  a  legal  interest  in 
the  whole  premises,  he  cannot  in  law  be  said  to  demise 
them.  As,  where  A.  was  tenant  for  life,  and  B.  had  the 
remainder  in  fee,  and  they  made  a  lease  to  C.,  and  de- 
clared upon  the  lease  as  a  joint  demise,  it  was  held  bad  ; 
because,  during  j^.'s  life,  it  was  the  lease  of  .#.,  and  the 
confirmation  ofB.,  and  after  the  death  of  .4.,  it  was  the 
lease  of  B.,  and  the  confirmation  of  -df.,  but  not  a  joint 
demise. (o) 

Joint  tenants,  or  parceners,  have  a  sufficient  interest  in 
the  lands  held  in  joint  tenancy,  or  parcenery,[l]  to  entitle 
them  to  make  a  joint  demise  of  the  whole  premises,  but  te- 
nants in  common  have  not :  and  the  reason  for  this  differ- 
ence seems  to  be,  that  tenants  in  common  have  several  and 
distinct  titles  and  estates,  independent  of  each  other,  so  as 
to  render  the  freehold  several  also ;  whilst  joint  tenants 


(n)  Anon.  6  Mod.  222.    Mostyn  v.        (o)  King  v.  Bery,  Poph.  57.  Tre- 
Fabrigat,  Cowp.  161.  176.  port's  case,  6  Co.  15,  (6). 


[1]  Coparceners  may  sever  in  ejectment,  and  one  coparcener  may  bring 
ejectment  on  her  separate  demise.    Jackton  v.  Sample,  1  Johns.  Cas.  23. 


OF  THE  DEMISE.  187 

and  parceners  are  seised  per  my  et  per  tout,  derive  by  one 
and  the  same  title,  have  a  joint  possession,  and  must  join  in 
any  action  for  an  injury  thereto  ;  so  that  each  of  them  may 
properly  be  said  to  demise  the  whole. (/>) 

0 

It  is  not,  however,  compulsory  upon  joint  tenants,  or  par- 
ceners, to  allege  a  joint  demise  ;  for  if  a  joint  tenant,  or 
parcener,  bring  an  ejectment  without  joining  his  companion 
in  the  demise,  it  is  considered  as  a  severance  of  the  tenan- 
cy, and  he  will  be  allowed  to  recover  his  separate  moiety 
of  the  land.  And  if  all  the  joint  tenants,  or  parceners, 
join  in  fie^  action,  but  declare  upon  separate  demises  by 
each,  it  is  held,  that  they  may  recover  the  whole  premises ; 
%  because,  by  the  several  demises,  the  plaintiffhas  the  entire 
interest  in  the  whole  subject  matter,  although  the  joint  te- 
nancy is  severed  by  the  separate  letting. (q) 

When  two,  or  more,  tenants  in  common,  are  lessors  of 
the  plaintiff,  a  separate  demise  must  be  laid  by  each,(r)[2] 
or  they  must  join  in  a  lease  to  a  third  person,  and  state  the 
demise  to  the  plaintiff  to  have  been  made  by  their  lessee. 
The  first  is  the  most  usual  mode  of  proceeding,  and  the  de- 
claration need  not  state  the  several  demises  to  be  of  the 

(p)  Moore  v.  Fwrtden,  1  Show.  342.        (q)  Doe,  d.  Gill,  v.  Pearson,  6  East, 

Millener  v.  Robinson,  Moore,  f>82.   Bo-  173.     Roe,  d  Roper,  v.   Lonsdale,  12 

ner  v.  Juner,  Ld.  Kay m.  726.    Mantle  East,  39.    Doe,  d.  Marsack,  v.  Read, 

T.  Wellington,  Cro.  Jac.  166.    Morris  12  East,  57.      Doe,    d.   Latham,  T. 

v.  Barry,   1   Wils.   1.     Htatheriy,  d.  Fenn,  8  Campb.  190. 
Worthington,  r.  Wetlon,  2  Wils.  232.  (r)  App.  No.  14,  16. 


[2]  It  has  been  determined  by  the  Supreme  Court  of  the  State  of  New- 
York,  that  tenants  in  common  may  declare  either  on  a  joint  or  separate  de- 
mise. Jackson  v.  Bratlt,  2  Caines'  Rop.  Ifiy,  175.  But  were  it  not  for  the  fic- 
tion of  lease,  entry,  and  ouster,  they  could  not  join  ;  for  it  is  a  general  rule, 
that  in  all  actions  real  and  mixed,  tenants  in  common  must  srw-r.  because 
tkey  have  several  freeholds,  and  claim  by  scv«rnl  titles.  //»',/ 


188  OF  THE  DEMISK. 


l  share*  hel<>n;_M!ii:  (o  the  several  tenants  respective- 
ly ;  but  each  demise  may  be  alleged  generally  to  be  of  the 
whole  premises  demanded  ;  for  under  a  demise  of  the  whole 
an  undivided  moiety  may  be  recovered.  (r)[3] 

When  any  doubt  exists  as  to  the  party  in  whom  the  legal 
title  is  vested,  it  is  usual  to  declare  upon  several  distinct 
demises  by  the  several  persons  concerned  in  interest,(») 
and  the  claimants  will  not  then  be  confined  at  the  trial  to 
one  particular  demise,  but  will  be  allowed  to  resort  to  any 
included  in  the  declaration,  under  which  they  may  be  able 
to  prove  a  title  to  the  premises.  Difficulties  of  this  nature 
frequently  occur  when  trustees  are  lessors  of  the  plaintiff; 
and  it  is  always  advisable  to  lay  separate  demises  by  the 
trustees,  and  ceslm  que  trust,  unless  the  effect  of  the  statute 
of  uses  upon  the  trust  is  most  clear  and  indisputable.  But 
application  should,  in  strictness,  be  first  made  to  such  trus- 
tees for  permission  to  make  use  of  their  names  ;  and  where 
demises  are  inserted  in  the  names  of  any  parties  without 
their  consent,  the  court,  on  motion,  will  order  such  demises 
to  be  struck  out  of  the  declaration,  unless  the  justice  of  the 
case  should  be  defeated  thereby.  But  where  a  plaintiff 
laid  a  demise  by  his  assignees,  without  their  permission, 
(they  having  given  up  to  him  the  property  in  the  premises,) 
and  obtained  judgment  and  execution  thereupon,  the  court 

(r)  Doe,  d.  Bryant,  v.  H'ippel,   1        (*)  Appendix,  No.  14,  15. 
Esp.  330. 


[3]  In  ejectment,  separate  demises,  from  several  lessors,  between  whom 
there  is  no  privity  of  interest,  may  be  laid  in  the  declaration;  and,  at  the 
trial,  the  plaintiff  may  prove  the  separate  titles  to  separate  parts  of  the  pre- 
mises, and  recover  accordingly.  For  it  cannot  operate  as  a  surprise  on  the 
defendant,  and  it  is  a  course  that  should  be  encouraged  to  prevent  multiplicity 
«f  suits.  Jackson  v.  Sidney,  12  Johns.  185. 


OF  THE  DEMISE.  189 

refused  to  set  the  proceedings  aside  at  the  instance  of  the 
defendant  in  the  ejectment,  notwithstanding  an  affidavit 
from  one  of  the  assignees,  that  he  knew  nothing  of  the  pre- 
mises in  question. (<)[4] 

The  day  on  which  the  demise  is  stated  to  have  been 
made,  is  so  far  material,  that  it  must  be  subsequent  to  the 
time  when  the  claimant's  right  of  entry  accrues  ;[5]  for  if 
the  lessor  have  not  a  right  to  enter,  he  cannot  have  a  right 
to  demise  the  lands,  and,  consequently,  the  plaintiii' 
be  nonsuited  at  the  trial ;  for  his  lessor  cannot  be  supposed 
to  have  made  an  illegal  demise. (u)  It  is  usual,  however, 
to  lay  the  demise  as  far  back  as  the  lessor's  title  will  admit; 
because  the  judgment  in  ejectment  is  conclusive  evidence 
as  to  the  title  of  the  lessor,  for  all  the  mesne  profits  accru- 
ing subsequently  to  the  day  of  the  demise  ;(c)  and  when 

(/)   Doe,  d.    Vine,  r.   Figgint,  3        (u)  Ante,  10.  Goodtitle,  d.  Gallo- 
Taunt.  440.  way,  v.  Herbert,  4  T.  R  680. 

(v)  Alslin  \.  Purkn,  Burr.  665. 


[4]  A  lessor  may  be  struck  out  of  the  declaration  on  affidavit  of  his  having 
no  interest  in  the  premises,  except  under  special  circumstances.  Jackson  v. 
Sclover,  10  Johns.  368. 

It' the  name  of  a  person  is  used  as  lessor  without  hi.s  consent,  it  may  be 
struck  out  on  application  to  the  court ;  but  if  it  be  not  struck  out,  he  is  inad- 
missible a«  a  witness.  Jackson  T.  Ogden,  4  Johns.  140. 

\Vlu-ro  a  person  is  made  lessor  against  his  consent,  and  the  nominal  plain- 
tiff afterwards  becomes  nonsuit,  such  lessor  is  not  liable  for  the  costs,  but  the 
plaintiff's  attorney  is  liable.  People  v.  Bradl,  6  Johns.  318. 

But  where  the  lessor  was  brought  up  on  attachment,  and  denied  that  he 
ever  consented  to  have  his  name  used,  which  was  directly  denied  by  contra- 
dicting affidavits,  Court  said  that  the  lessor  niiiit  pay  the  costs,  and  take  his 
remedy  over  against  the  attorney,  but  they  respited  the  recognizance,  to  give 
him  an  opportunity  to  bring  his  action  against  the  attorney.  People  v.  Bradl, 
7  Johns.  539. 

[5]  The  demise  must  be  laid  at,  or  subsequent  to,  the  time  that  plaint  iff  > 
ritrht  nrcnied.  Van  Allen  v.  Rogers,  1  Johns.  Ca».  283. 


190  OP  THE  DEMISE. 

there  are  any  doubts  as  to  the  period  when  the  lessor's  title 
accrued,  it  is  customary  to  state  different  demises  by  him 
on  different  days. 

In  an  ejectment  on  the  demise  of  an  heir  by  descent,  the 
demise  was  laid  on  the  day  the  ancestor  died,  and  held  to 
be  well  enough  ;  for  the  ancestor  might  die  at  five  o'clock, 
the  heir  enter  at  six,  and  make  a  lease  at  seven,  which 
would  be  a  good  lease. (tc)  It  seems,  also,  according  to 
Lord  Hardwicke,  that  a  posthumous  son,  taking  lands  under 
the  provisions  of  10  and  1 1  Wm.  111.  c.  16.  would  be  en- 
titled to  lay  the  demise  in  an  ejectment,  from  the  day  of  his 
father's  death. (a?) 

It  has  already  been  observed,  that  in  an  ejectment,  by 
the  surrenderee,  of  copyhold  premises,  the  demise  may  be 
laid  against  all  persons  but  the  lord,  on  a  day  between  the 
times  of  surrender  and  admittance,  provided  the  surren- 
deree be  admitted  before  trial. (y) 

But  this  doctrine  of  relation  does  not  apply  where  the 
assignees  of  a  bankrupt  are  the  lessors  of  the  plaintiff,  so 
as  to  enable  them  to  recover  the  freehold  lands  of  the  bank- 
rupt, upon  a  demise  subsequently  to  the  act  of  bankrupt- 
cy, but  before  the  date  of  the  bargain  and  sale  by  the 
commissioners  ;  for  the  freehold  remains  in  the  bankrupt, 
though  not  benefiicially,  until  taken  out  of  him  by  the  con- 
veyance, (z) 

In  like  manner,  a  conveyance  to  a  creditor  of  an  insol- 
vent debtor's  estate  by  the  clerk  of  the  peace,  (in  whom  it 

(w)  Roe,  A.  Wrangliam,  v.  Hcrtiy,        (y)  Ante,  66. 

3  Wils.  274.  (s)  Doe,  d.  Esdaile,  v.  Mitchell,  % 

(x)  B.  iN.  P.  10$.  M.  k  S.  446. 


OF  THE  DEMISE.  191 

is  vested,  upon  the  order  for  the  insolvent's  discharge,  by 
the  stat.  41  G.  III.  c.  70.  s.  15.  until  the  subsequent  con- 
veyance to  the  creditor,)  does  not  vest  such  estate  in  tin 
creditor,  by  relation,  either  to  the  date  of  the  order  or  of 
the  conveyance,  but  only  from  the  actual  execution  of  such 
conveyance  by  the  clerk  of  the  peace  ;  and,  therefore,  such 
creditor  cannot  recover  in  ejectment,  upon  a  demise  laid 
anterior  to  the  execution  of  the  deed,  although  subse- 
quent to  the  time  when  the  estate  was  out  of  the  insolvent 
debtor,  and  the  order  made  to  convey  the  same  to  the  les- 
sor.^) 

When  a  pauper  has  been  let  into  possession  of  premises 
by  the  overseers  of  a  parish,  the  demise  should  be  laid  by 
the  overseers  for  the  time  being  when  the  ejectment  is 
brought,  if  the  pauper  has  done  any  act  recognizing  a  hold- 
ing under  them  ;  but  otherwise  by  the  overseers  who  let 
him  into  possession,  or  the  last  set  of  overseers  whom  he 
has  acknowledged  as  his  landlords. (6) 

When  a  fine  with  proclamations  has  been  levied,  and  an 
actual  entry  is  necessary  to  avoid  it,  the  demise  must  be 
laid  on  a  day  subsequent  to  the  entry. (c) 

Tenancies  at  will  scarcely  exist  at  the  present  day ;  but 
when  an  ejectment  is  brought  against  a  tenant  at  will,  the 
demise  must  be  laid  subsequently  to  the  time  when  posses- 
sion is  demanded,  that  is  to  say,  subsequently  to  the  de- 
termination of  the  will.(cJ) 


(«)  Dot,  A   Wliatley,  v.  Telling,  2  (c)  Berington,  d    Dormer,  v.  Park 

East,  256.  hurst,  And.    125.     S.  C.  Stran.  1086 

(b)  Doe.d.  Grundy,  v.  Clarke,  M  S.C.  Willes,327.    S.  C.  13  East,  489. 

East,  488.  (d)  JtnU,  103. 


192  OF  THE  DEMISE. 

When  au  ejectment  is  intended  to  be  brought  against  a 
tenant  from  year  to  year,  and  the  time  of  the  coinm> 
intMil  of  the  tenancy  is  unknown,  the  only  sure  method  of 
avoiding  a  nonsuit  is  to  give  a  general  notice  to  quit  "at 
the  end  and  expiration  of  the  current  year  of  the  tenancy 
thereof,  which  shall  expire  next  after  the  end  of  one  half 
year  from  the  date  of  the  notice,"  and  to  lay  the  demise 
eighteen  months  after  the  delivery  of  such  notice.(e) 

The  length  of  the  term,  during  which  the  premises  are 
alleged  in  the  declaration  to  have  been  demised  to  the 
plaintiff,  is  wholly  unconnected  with  the  title  of  the  claim- 
ant, and  may  be  of  longer  duration  than  his  interest  in  the 
land.(y* )  A  contrary  doctrine  was  once,  indeed,  maintained, 
upon  the  principle,  that  by  a  judgment  in  ejectment  the 
plaintiff  recovers  his  term  mentioned  in  the  declaration, 
and,  therefore,  if  the  term  declared  on,  be  of  greater  du- 
ration than  the  lessor's  title,  as,  for  instance,  if  the  lessor 
be  entitled  to  the  lands  for  three  years  only,  and  the  plain- 
tiff declare  on  a  demise  for  five,  he  would  wrongfully  hold 
the  lands  for  the  last  two  years. (g)  But  this  doctrine  has 
since  been  very  correctly  overruled  :  because  if  the  lessor 
have  the  right  of  possession  but  for  a  month,  and  make  a 
lease  for  seven  years,  it  will  enure  to  his  lessee  for  the 
month  duly,  and  during  that  time  he  will  be  entitled  to  the 
possession  :  and,  as  a  judgment  in  ejectment  is  not  admit- 
ted as  evidence  of  the  lessor's  title,  he  cannot  by  reason  of 
it  be  enabled  to  keep  possession  after  the  month  has  ex- 
pired.^) 


(e)   Vide  post,  chap.  10.  (g)  Roe  r.  Williamson,  2  Lev.  14<> 

(/)  Doe,  d.  Short,  v.  Porter,  3  T.     S.  C.  3  Keb.  490. 
R.  13.  (A)  B.  N.  P.  106.    Clerkt  v.  Rmoell 

1  Mod.  10. 


OF  THE  DEMISE.  193 

Seven  years  is  the  term  usually  declared  upon  ;  and  the 
only  direction  necessary  to  be  given  upon  this  point  is,  that 
the  term  be  of  a  length  sufficient  to  admit  of  the  lessor's  re- 
covering possession  of  the  land  before  its  expiration ;  al- 
though the  courts  arc  now  very  liberal  in  permitting  lessors 
to  amend  in  this  respect,  as  will  be  stated  hereafter. 

It  was  for  some  time,  even  after  the  introduction  of  the 
modern  practice,  holden  necessary,  that  when  an  ejectment 
was  brought  by  a  corporation  aggregate,  thjy  should  exe- 
cute  a  power  of  attorney,  authorizing  some  person  to  enter 
and  make  a  lease  on  the  lands  ;  that  such  person  according- 
ly should  enter,  and  make  a  lease  under  seal ;  and  that  the 
declaration  should  state  the  demise  to  be  by  deed.(i) 
These  forms,  it  seems,  were  deemed  necessary  upon  the 
principle,  that  a  corporation  aggregate  cannot  perform  any 
corporate .  act  otherwise  than  under  the  corporation  seal, 
nor  make  an  attorney,  or  bailiff,  but  by  deed.  They  could 
not,  it  was  therefore  said,  enter  and  demise  upon  the  land 
in  person,  as  natural  persons  could ;  nor  substitute  an  attor- 
ney to  enter  into  a  rule  for  their  costs  ;  nor  would  an  at- 
tachment go  against  them  for  disobedience  to  that  rule. 
They  therefore  made  an  actual  lease  upon  the  lands,  and 
then  the  attorney  proceeded  in  the  common  method.  But, 
since  the  principles  of  this  action  have  been  more  clearly 
understood,  none  of  these  peculiarities  are  necessary  ;  and 
the  demise  may  now  be  laid  in  the  general  way,  without 
any  power  of  attorney  being  made,  any  lease  being  sign- 
ed,^') or  any  statement  of  such  a  lease  being  introduced  in- 
to the  declaration.  One  case  only  is  indeed  to  be  found 
upon  the  latter  point,  and  in  that,  the  question  arose  after 

(i)  Gilb.  Eject.  35.  (j)  Furlcy,  d.  Mayor  of  Canterbury, 

v.  Wood,  I  Esp.  198. 
25 


194  OF  THE  DEMISE. 

the  verdict  ;(j)  but  from  the  reasoning  then  used  by  the 
court,  no  doubt  can  be  entertained  that  the  principle  would 
be  extended  to  every  stage  of  the  action  ;  and  that  a  plain- 
lilFin  ejectment  would  never  be  nonsuited  for  the  omission 
of  such  a  slatement.(A;)  The  demise  is  still  certainly  some- 
times stated  to  be  by  deed;  and  it  is  immaterial  whether 
it  be  so  or  not,  as,  notwithstanding  the  statement,  no  proof 
of  the  deed  is  required. (/) 

If  a  corporation  be  aggregate  of  many,  they  may  set  forth 
the  demise  in  the  declaration,  without  mentioning  the 
Christian  names  of  those  who  constitute  the  corporation  ; 
but  if  the  corporation  be  sole,  as  if  the  demise  be  by  a 
bishop,  the  name  of  baptism  must  be  inserted.  The  rea- 
son of  this  is,  that  in  the  first  case  the  name  solely  consists 
of  its  character,  but  in  the  last,  in  its  person ;  therefore, 
there  cannot  be  a  sufficient  specification  of  that  person  with- 
out mentioning  his  name.(m) 

In  the  case  of  Swadling  v.  Piers,(n)  it  was  ruled,  that 
in  an  ejectment  for  tithes,  the  plaintiff  must  declare  on  a 
demise  by  deed,  because  tithes  cannot  pass  but  by  deed ; 
but  this  decision  has  since  been  overruled,  and  the  state- 
ment of  a  deed  seems  even  in  this  case  to  be  no  longer 
necessary. (o) 


(j)  Partridge  v.  Ball,  Ld.  Rayui.  not  being  stutetl  to  be  by  deed.  (Kent 

136.  S.  C.  Carlli.  390.  Sum.  Ass.  1809,  M.  S.) 

(/fc)  In  the  case  of  Doe,  d.  Dean  and  (I)  Purity,  d  Mayor  of  Canterbury, 

Chapter  of  Rochester,  v.  Pierce,  the  de-  v.  Wood,  \  Esp.  198. 

misc  was  in  the  common  form,  and  (m)    Carter  v.  Cromwell,  Sav.  128, 

many  objections  were  taken  upon  o-  citrd,  Dyer,  86. 

thcr  points  by  the  defendant's  counsel,  (n)  Cro.  Jac.  613. 

and  overruled  ;  but  they  never  advert-  (o)  Partridge  v.  Ball,  Ld.  Raym. 

ed  to  the  circumstance  of  the  demise  13G.    S.  C.  Garth.  390. 


OF  THE  DEMISE.  195 

It  seems  also  to  have  been  holden,  that  on  a  demise  by 
the  master  and  fellows  of  a  college,  dean  and  chapter  of  a 
cathedral,  master  or  guardian  of  an  hospital,  parson,  vicar, 
or  other  ecclesiastical  person,  of  any  lands,  &c.  the  de- 
claration should  state  that  there  was  a  rent  reserved,  &c. 
pursuant  to  the  statute  13  Eliz.  c.  10. ;  but  this  form  can- 
not now  be  necessary.(/>) 

A  similar  doctrine  was  once  applied  to  the  case  of  an 
infant  ;(q)  but  it  has  been  long  settled,  that  an  infant  may  t 
make  a  lease  without  rent  to  try  his  title. (r)  When,  how- 
ever, a  demise  is  laid  by  an  infant,  his  father,  or  guardian, 
should  be  made  plaintiff,  instead  of  a  nominal  person,  in 
order  to  save  the  trouble  and  expence  of  giving  security 
for  the  costs,  which  he  would  otherwise  be  compelled  to 
do.(j) 

It  is  not  necessary  to  state,  in  the  declaration,  that  the 
premises  are  situated  in  a  parish,  hamlet,  &c. ;  it  is  suffi- 
cient to  mention  the  name  of  the  place  in  which  they  are 
situate,  without  also  describing  it  by  the  name  of  its  eccle- 
siastical or  civil  division. (/)  And  in  one  case,  where  even 
the  name  of  the  place  was  omitted  when  describing  the 
premises,  but  such  name  could  be  collected  from  other 
parts  of  the  declaration,  the  Court  held  the  description  to 
be  sufficiently  ccrtain.(u)  When,  however,  the  premises 


(p)  Carter  v.  Cromwell,  Sav.  129.  (u)    Goodright,   d.  Smalhcood,  v. 

(9)  Lill.  Prac.  Reg.  673.  Strotlicr,  Black.  706.    The  declaration 

(r)  Zonck  v.  Parson*,  Burr.  17D4.  in  this  case  stated,  that  one  M.  S.  "  at 

1806.  Hancell  in  the  county  of  B."  demised 

(t)  Abie  T.  Wind/turn,  Stran.  694.  to  plaintilTuvo  messuages,  from  which 

Anon.  1  Wilg.  130.  messuages  defendant  at  Haswtll  afore- 

(t)  Goodtillc,  d  Bembriiliff,  v.  Wnl-  taid,  ousted  plaintiff;  and  the  Court 

trr,  4  Taunt.  671.  considered,  that  the.  statement  of  thr 


196  OP  THE  DEMISE. 

are  described  as  lying  in  a  parish,  hamlet,  &c.  such  de- 
scription must  be  a  correct  one,  and  an  uncertain  or  im- 
proper description  will  be  fatal.  Thus,  in  an  ejectment 
for  lands,  "  in  the  parishes  of  A.  and  J5.,  or  one  of  them," 
the  judgment  was  arrested  for  the  uncertainty,  although  it 
appeared  that  the  parishes  had  originally  been  one,  and 
lately  been  divided  by  an  act  of  parliament,  and  that  the 
boundaries  were  not  settled.(r)  But  if  the  words  "  or  one 
of  them"  had  been  omitted,  it  seema  the  description  would 
have  been  sufficient,  though  all  the  lands  were  contained 
in  one  of  the  parishes. (a>) 

Where  the  premises  were  described  as  situate  "  in  the 
united  parishes  of  St.  Giles  in  the  Fields,  and  St.  George, 
Bloomsbwy,  and  it  appeared  that  those  two  parishes  were 
united  together  by  Act  of  Parliament,  for  the  maintaining 
of  their  poor,  but  for  no  other  purpose,  the  variance  was 
held  fatal ;  for  by  the  description,  the  parishes  were  stated 
as  if  they  were  completely  blended  together,  and  formed 
only  one  parish,  when,  in  truth,  they  remained  entirely  dis- 
tinct, except  as  to  the  maintenance  of  the  poor.(x)  But 

ouster  being  at  Haswell,  amounted  to  ejectment    had  been  of  an  acre  of 

a  sufficient  certainty  that  the  lands  laud  in   D.  and  F.,   and  it  appeared 

demised  lay  at  Haswell.  that  the  whole  acre  was  in  D.,  it  would 

(v)  Goodright  v.  Fawson,  7  Mod.  be  well  enough.     The  reason  for  this 

457.    S.  C.  Barn.  184.    Cottingham  v.  diversity  seems  to  be,  that  the  acre 

King,  Burr.  624  and  the  authorities  being  the  whole  thing  demanded,  the 

there  cited.  description  is  sufficiently  certain,  al- 

(w)  Goodwin  v.  Blackman,  3  Lev.  though  it  all  be  in  one  parish  ;  where- 
334.  In  this  case  the  ejectment  was  as,  when  only  a  tenth  part  isdemand- 
"  for  a  tenth  part  of  a  messuage  in  D.  ed,  it  is  uncertain  which  tenth  part  is 
and  F."  and  the  whole  messuage  ap-  meant,  and,  therefore,  as  no  tenth 
pearing  in  evidence  to  lay  in  D.,  and  part  answers  the  description,  the  she- 
no  part  in  F.,  the  description  was  held  riff  could  not  give  execution;  tamen 
ill,  because  it  was,  "  precisely  of  the  quttre  et  vide  Burr.  330.  el  ante,  20. 
tenth  part  of  an  entire  thing ;"  though  (x)  Goodtitle  v.  Pinxent,  d.  Ln/nmi- 
it  was  said  by  the  court,  that  if  the  man,  2Campb.274.  S.C.6Esp.  128. 


OP  THE  DEMISE.  197 

where  the  premises  were  described  as  situate  in  the  parish 
of  West  Putworth  and  Bradworthy,  and  it  appeared  that 
West  Putworth  and  Bradwortky  were  separate  parishes,  the 
Court  held  the  description  to  be  sufficiently  certain,  reject- 
ing the  word  parish  as  surplusage,  and  considering  the  de- 
mise as  of  lands  in  West  Putworth  and  Bradworthy.(y)  An.d 
where  the  premises  were  laid  to  be  at  the  parish  of  Farn- 
ham,  and  were  proved  at  the  trial  to  be  in  the  parish  of 
Farnham  Royal,  it  was  held  not  to  be  a  fatal  variance,  un- 
less it  could  be  proved  that  there  were  two  Farnhams.(z) 

When  the  premises  lie  in  different  parishes,  it  has  been 
usual  to  enumerate  the  whole  as  lying  in  one  parish,  and 
to  repeat  the  description  of  them  as  lying  in  the  other 
parish ;  but  it  seems  sufficient  to  enumerate  them  once 
only,  describing  them  as  lying  in  the  parishes  of  A.  and  B.. 
or  in  A.  and  B.  respectively.(a) 

The  number  of  messuages,  acres,  &c.  mentioned  in  the 
demise,  need  not  correspond  with  the  number  to  which  the 
lessor  claims  title.  He  may  declare  for  an  indefinite  num- 
ber, as  a  hundred  messuages,  a  thousand  acres  of  arable 
land,  &c. ;  and  care  should  be  taken  that  the  number  spe- 
cified in  the  demise  be  larger  than  the  number  claimed ; 
because,  although  if  he  declare  for  more  than  he  is  entitled 
to,  he  may  recover  less,  the  reverse  will  not  hold. (6)  Upon 
the  same  principle,  if  the  lessor  of  the  plaintiff  be  entitled 
to  a  moiety,  or  other  part,  of  an  entire  thing,  as  the  half. 


(y)    Goodtitle,  d.   Brembridge,  v.        (a)  2  Chitty,  Prcc.  395. 
Walter,  4  Taunt.  671.  (6)  Denn,  d.  Burgit,  v.  Purvis,  Bun. 

(e)  Dot,  d.   Toilet,  v.  Sailer,  13    326.    Guy  r.  Kami,  Cro.  Eiiz.  13. 
TSast,  9. 


198  OF  THE  ENTRY. 

or  third  part,  of  a  house,  he  may  recover  such  moiety,  or 
third  part,  on  a  demand  for  the  whole. (c) 

The  entry  of  the  plaintiff  on  the  land  need  not  be  alleged 
in  the  declaration,  to  be  made  on  any  particular  day,  al- 
though in  the  precedents  it  is  usually  so  stated.  It  is  suffi- 
cient if  it  be  declared  generally,  that  the  plaintiff  entered 
by  virtue  of  the  demise  :  nor  does  it  seem  to  have  been  re- 
quired, even  in  the  ancient  practice,  to  be  more  explicit, 
because,  as  the  plaintiff  entered  by  virtue  of  the  lease,  he 
must  necessarily  have  entered  after  his  title  accrued ;  though 
it  was  then  said,  that  it  might  have  been  otherwise,  if  the 
declaration  had  been  pr&textu  cujus  he  entered,  for  the 
plaintiff  might  enter  unlawfully,  or  before  his  time,  under 
pretence  of  the  lease. (d) 

The  day  upon  which  the  ouster  of  the  plaintiff,  by  the 
casual  ejector,  is  alleged  to  have  taken  place,  should  re- 
gularly be  after  the  commencement  of  the  supposed  lease 
and  entry.  This  is  requisite,  in  order  to  support  the  con- 
sistency of  the  fiction  ;  because,  as  the  title  of  the  plaintiff 
is  supposed  to  arise  from  the  lease  mentioned  in  the  decla- 
ration, it  would  be  absurd  for  him  to  complain  of  an  injury 
to  his  possession  before,  by  his  own  showing,  he  had  any 
claim  to  be  possessed.  But  it  does  not  seem  absolutely 
necessary  that  this  consistency  should  be  preserved  ;  for,  as 
the  words  "  afterwards,  to  zinf,"  are  always  used  immedi- 

(c)  Ablett  v.  Skinner,  1  Siderf.  229.  bad ;  because  of  the  uncertainty  of 

Goodwin  v.  Bladtman,  3   Lev.  334.  which  part,  or  moiety,  the  plaintiff  is 

In  an  ancient  case  it  is  said,  that  if  an  to   have   execution.     (Winkworth  v. 

ejectment  be  brought  for  an  acre  of  Mann,  Yelv.  1 14,  tamen  qiutre,  ct  r »'- 

land,  and  the  metes  and  bounds  be  dc  ante,  chap.  2.) 

described  in  the  declaration,  and  the  (d)  WakeUy  v.  Warren,  2  Roll.  Rep. 

jury  find  th«  defendant  guilty  in  half  466.    Sed  vide  Douglat  v.  Shank,  Cro. 

an  acre  of  land,  the  verdict  will  be  KHz.  766. 


OF  THE  OUSTER.  199 

ately  before  mentioning  the  day  of  the  ouster,  it  is  most 
probable,  upon  the  principles  by  which  ejectments  are  at 
present  regulated,  that  the  courts  would  in  all  cases  consi- 
der an  ouster  laid  previously  to  the  day  of  the  entry,  "  at 
impossible  and  repugnant,"  and  as  such  reject  it.(e )  Even 
when  the  old  practice  prevailed,  and  the  true  principles  of 
the  remedy  were  so  little  understood,  every  possible  in- 
tention was  made  in  favour  of  the  plaintiff,  when  an  ouster 
was  alleged  anterior  to  the  time  of  the  demise.  Thus,  on 
a  demise  from  the  1st  of  February,  1752,  to  hold  from  the 
8th  of  January  before,  and  that  afterwards,  namely,  on  the 
28th  of  January,  1752,  defendant  ejected  him,  and  it  was 
insisted  for  the  defendants,  that  the  plaintiff's  title  did  not 
commence  until  the  1st  of  February,  and,  therefore,  that 
the  ouster  was  laid  too  soon  ;  the  court  held,  that  the  day 
of  the  ouster,  being  laid  under  a  scilicet,  was  surplusage, 
and  that  "  afterzoards"  should  relate  to  the  time  of  making 
the  lease,  and  then  all  would  be  well  enough.(/)  In  like 
manner,  on  a  demise  from  the  6th  of  May,  anno  septimo,  by 
virtue  of  which  plaintiff  entered,  and  was  possessed  until 
afterwards,  on  the  18th  of  the  same  month,  anno  sexto  su~ 
pradicto,  defendant  ejected  him,  the  court  held  the  decla- 
ration sufficient ;  because  the  ouster  was  laid  to  be  on  the 
1 8th  of  the  same  month,  which  it  could  not  be  if  it  were 
done  in  the  sixth  year,  and  rejected  the  word  sexto  as  in- 
consistent and  void.(g)  Upon  the  same  principle,  where 
the  demise  was  on  the  sixth  of  September,  2  Jac.,  by  vir- 
tue of  which  the  plaintiff  held,  until  afterwards,  (to  wit)  on 
the  fourth  day  of  September,  2  Jac.,  defendant  ejected 
him,  the  declaration  was  holden  good,  and  the  words  under 
the  scilicet  rejected  as  surplusage. (h) 

(«)  Mnms  v.    Goote,  Cro.  Jac.  96.        (g)  Doris  v.  Purdy,  Yelv.  182. 
B.  N.  P.  106.  (h)  Adams  v.  Goose,  Cro.  96.  Some 

(/)  B.  N.  P.  106.  old  ejectment  ca»ei  are  to  be  found 


200  OF  AMENDING  THE  DECLARATION. 

From  the  case  of  Merrell  v.  Smilh.(i)  it  does  not  seem 
necessary  to  allege  any  particular  day  for  the  ouster,  pro- 
vided it  appears  from  the  declaration  to  be  subsequent  to 
the  commencement  of  the  term,  and  prior  to  the  bringing 
of  the  action  ;  but  in  the  precedents  a  day  certain  is  al- 
ways laid,  and  it  is  the  better  method  to  mention  a  parti- 
cular day. 

With  respect  to  the  duster  in  an  ejectment  for  tithes,  il 
is  said,  in  the  case  of  Worrall  v.  Harper,(j)  that  where  the 
ouster  was  set  forth  to  have  been  made  in  the  month  of 
May,  it  was  held  ill,  because  there  were  no  tithes  to  be 
ousted  of  at  that  season  of  the  year ;  but  this  doctrine  is 
controverted  by  Gilb-ert,  C.  B.,  on  the  principle,  that  the 
law  does  not  judicially  take  notice  of  the  time  when  tithe* 
arise.  (/<;) 

OF  AMENDTNG  THE  DECLARATION. 

It  was  formerly  the  practice,  both  in  the  King's  Bench 
and  the  Common  Picas,  not  to  permit  the  declaration  in 
ejectment  to  be  amended,  until  the  landlord,  or  tenant, 
had  been  made  defendant  instead  of  the  casual  ejector ; 


in  the  books,  (Goodgain  v.  Wakefield,  from  "  the  day  of  the  date"  of  the 
1  Sid.  7.  Evans  v.  Croker,  3  Mod.  lease  ;  but,  since  the  judgment  in 
198.  Stephens  v.  Croker,  Comb.  83.  Pugh  v.  Duke  of  Leeds  (Cowp.  714.) 
Higham  v.  Cooke,  4  Leon.  144.  Os-  by  which  it  has  been  determined,  that 
born  v.  Rider,  Cro.  Jac.  135.  Llew-  these  expressions  shall  be  construed 
clyn  v.  Williams,  Cro.  Jac.  258.  Clay-  indifferently,  either  inclusively,  or  ex- 
ton's  case,  5  Co.  1.)  in  which  the  ous-  clusiiely,  so  as  to  give  effect  to  ihe 
ters  were  laid  on  the  same  days  as  deed,  these  cases  can  no  longer  be 
the  demises,  and  which  were  decided  authorities. 

upon  the  distinctions  formerly  taken,  (i)  Cro.  Jac.  311.     Jenk.  341. 

as  to  the  time  of  the  commencement  ( /)  1  Roll.  Rep.  65. 

of  a  demise,  when  stated  in  the  lease  (k)  Gilb.  Eject.  67. 
ta  be  "  from  the  date,"   and  when 


OF  AMENDING  THE  DECLARATION.  201 

and,  consequently,  if  the  defects  were  such  as  to  prevent 
the  courts  from  granting  the  common  rule  for  judgment 
against  the  casual  ejector,  the  plaintiff's  lessor  was  com- 
pelled to  discontinue  the  action,  and  resort  to  a  new  eject- 
ment^/) But  this  practice  is  inconsistent  with  the  present 
mode  of  regulating  the  remedy ;  and  the  court  would,  it  is 
presumed,  now  permit  the  lessor  to  amend  his  declaration 
before  appearance,  provided  such  amendment  did  no  in- 
justice to  the  tenant.  Indeed,  in  a  recent  case,  where,  by 
mistake,  the  name  of  the  tenant  in  possession  was  inserted 
at  the  commencement  of  the  declaration,  instead  of  that  of 
the  casual  ejector,  (the  declaration  and,  notice  to  appear 
being  in  other  respects  regular,)  the  court  granted  the  rule 
for  judgment  upon  the  common  affidavit  of  service,  and 
suggested,  that  if  the  tenant  did  not  appear  to  the  action, 
an  application  should  be  made  to  amend  the  declaration. (m) 

It  is  also  said  that,  even  after  appearance,  the  declara- 
tion can  be  amended  in  form  only,  and  not  in  matter  of 
substance ;  but  it  is  now  difficult  to  point  out  what  errors 
would  be  deemed  substance,  and  not  amendable.  Under 
the  strict  rules,  by  which  the  action  was  formerly  conduct- 
ed, the  demise,  the  length  of  the  term,  the  time  of  the 
ouster,  &c.(n)  were  all  considered  as  matters  of  sub- 


(/)  Itoe,  d.  Slt^henson,  v.  Doe .  Barn,  his  first  declaration,  had  laid  the  ons- 

ISrt.  ter  before  the  commencement  of  hie 

(nt)  Doe,  d.  Colbey,  \.  Roe,  K  B.  term,  or  omitted  any  other  matter  of 

T.  T.  1816.  .MS.  substance,  though  the  second  decla- 

(n)  Formerly  when  a  person  de-  ration  were  correct,  he  could  not  re- 

<  larrtl  in  <  ;ri  tmcnt  in  the  Common  cover;  because  the  declaration  on  the 

Picas,  it  wus  the  course  of  the  court,  imparlance  roll  was  the  material  one 

that  after  imparlance  he  should  make  on  which  the  action  was  grounded. — 

a  second  declaration  ;  and,  when  this  (Merrell  v.  Smith,  Cro.  Jac.  311. — 

practice  prevailed,  if  tin-  plaintiff,  by  Jenk.  341.) 

26 


OF  AMENDING  THE  DECLARATION. 

stance  ;(o)  and  so  unbending  were  the  courts  upon  these 
points,  that  if  the  term  expired,  pending  the  action,  by  in- 
junction from  the  Court  of  Chancery  at  the  defendant's 
application,  or  by  the  delay  of  the  court,  in  which  the  ac- 
tion was  brought,  in  giving  judgment,  the  lessor  was  obli- 
ged to  resort  to  a  new  ejectment.  (/?)[6] 

(o)  Doe,  d.  Hardman,  v.  Pilking-  130.  Scrape  v.  Rhodes,  Barn.  8.  Dri- 

ten,  Burr.  2447,  and  the  cases  there  rtr  v.  Scratlon,  Burn.  17-  Kesworth 

cited.  v.  Thomas,  And.  208.  Tkrustaut  v. 

(p)  Anon.  Salk.  237.     S.  C.  6  Mod.  Gray,  Cos.  Temp.  Hard.  166. 


[6]  A  new  demise  may  bo  added  on  terms,  viz.  that  the  defendant  hare 
twenty  days,  after  service  of  amended  declaration,  to  elect  whether  he  will 
continue  to  defend  the  suit ;  and  if  he  do,  then  to  have  the  usual  costs  of 
amendment,  and  twenty  days  from  the  time  of  election,  to  plead  dc  novo,  01 
abide  by  former  plea,  and  if  he  elect  to  proceed  no  further,  to  have  co.sts  up 
to  time  of  making  such  election.  2  Caines,  260,261.  Coleman's  Cas.  49. 

After  six  years  service  of  the  declaration,  leave  was  given  to  add  ntw  de- 
mises on  the  plaintiff's  paying  all  the  costs  already  incurred,  in  case  the  de- 
fendant should  choose  to  relinquish  his  defence.  Jackson  v.  Kough,  I  Caines, 
261. 

The  plaintiff  will  not  be  permitted  to  amend)  by  inserting  a  demise  from  a 
person  having-  no  subsisting  title  to  the  premises  ;  for  if  any  person,  who  may 
once  have  had  a  title,  is  to  be  made  lessor,  the  burthen  of  deducing  a  title 
from  him,  is  unreasonably  taken  from  the  plaintiff,  and  thrown  on  the  tenant. 
Jackson  v.  Richmond,  4  Johns.  483. 

Defendant,  previous  to  entering  into  consent  rule,  was  allowed  to  have  the 
demise  of  a  lessor,  who  had  died  before  the  commencement  of  the  suit,  struck 
out  of  the  declaration.  Jackson  v.  Ditz,  1  Johns.  Cas.  392.  Jackson  T.  Dan- 
craft,  3  Johns.  259. 

The  application  may  also  be  made  after  entering  into  the  consent  rule. 
Jackson  v.  Reynolds,  1  Caines'  Rep.  21.  Ditzadsv.  Butter,  Coleman's  Cas.  102. 

Where,  on  application  of  the  defendant,  a  demise  is  ordered  to  be  struck 
out  of  the  declaration,  he  must  serve  a  copy  of  the  rule  for  amendment  on  the 
plaintiff*,  which  shall  be  deemed  an  actual  amendment  as  to  all  subsequent 
pnx-eeilings  on  the  part  of  the  plaintiff;  and  the  defendant,  without  a  new 
copy  of  the  declaration  being  served  on  him,  must  enter  into  the  consent  rule, 
and  plead  in  twenty  days  alter  service  of  the  certified  copy  of  the  rule  for  the 
amendment,  unless  otherwise  ordered  by  the  court,  and  the  rule  shall  be  suffi- 
cient to  authori/.e  an  actual  amendment  of  the  declaration  on  file,  or  to  file 
a  new  one  in  its  stead,  whenever  it  may  become  necessary.  Jackson  v.  Belk- 
rtap,  7  Johns.  800. 


OF  AMENDING  THE  DECLARATION.       203 

A  more  liberal  principle  has,  however,  of  late  years  been 
adopted ;  and  the  demise,  term,  &c.  are  now  most  correct- 
ly considered  as  formal  only,  and  may  be  amended  if  ne- 
cessary. Thus,  in  an  ejectment  to  recover  lands,  forfeited 
by  the  levying  of  a  fine,  where  the  demise  was  laid  ante- 
rior to  the  time  of  the  entry  to  avoid  the  fine,  and  the  suit 
was  staid,  by  injunction  in  the  Court  of  Chancery,  for  more 
than  five  years  after  the  fine  was  levied,  so  that  the  lessor 
was  not  in  time  to  make  a  second  entry,  or  bring  a  second 
ejectment,  the  court  permitted  him  to  change  the  day  of 
the  demise,  to  a  day  subsequent  to  the  day  of  the  entry : 
Lord  Mansfield  observing,  that  the  demise  was  a  mere  mat- 
ter of  form,  and  did  not  exist.(g')  And  in  a  recent  case, 
where  the  ejectment  was  brought  upon  a  forfeiture,  and 
the  demise  was  laid  on  a  day  anterior  to  the  time  when  the 
forfeiture  was  committed,  the  court  permitted  the  lessor  of 
the  plaintiff  to  amend  (upon  payment  of  the  costs  of  the 
application)  after  the  record  was  made  up,  and  the  cause 
set  down  for  trial. (r)  But  this  permission  is  not  to  be  ex- 
tended to  the  injury  of  the  defendant,  and  therefore  the 
court  will  not  suffer  the  day  of  the  demise  to  be  altered  to 
a  day  subsequent  to  the  day  of  the  delivery  of  the  declara- 


(q)  Doe,  d.  Hardman,  v.  Pilking-  course,  and  the  igsue  was  made  up, 

ton,  Burr.  2447.  and  the  cause  set  down  for  trial,  at 

(r)  Due,  d.  Rumford,  v  Miller,  K.  the  first  Sittings  in  Middlesex,  in  Hi- 
fi.  H.  T.  1814., MS — This  case  seems  lary  Term,  1814;  but  being  entered 
to  carry  the  principle  of  allowing  an  late  in  the  paper,  stood  over  until  the 
amendment  of  the  demise  in  an  eject-  second  Sittings.  Two  days  before 
ment  to  its  utmost  limit.  The  eject-  the  second  Sittings,  a  rule  to  show 
nient  was  brought  upon  a  covenant  to  cause  why  the  day  of  the  dcmi.e 
finish  certain  buildings  in  a  workman-  should  not  be  altered  to  the  3"ih  of 
like  manner  before  the  29th  of  Sept.  Sept.  was  obtained  by  the  plaintiff, 
1313  The  demise  was  laid  on  the  26th  which  rule  was  mnde  absolute  irame- 
day  of  March,  1813,  and  the  declare-  diately  before  the  rising  of  the  court 
tion  delivered  on  the  29th  of  Oct.  1813.  ou  the  morning  of  the  second  Sittings. 
The  tenant  appeared  in  the  regular 


204  OP  AMENDING  THE  DECLARATION. 

tion,  for  this  would  be  to  give  the  lessor  of  the  plaintiff  a 
right  of  action  which  did  not  subsist  at  the  time  of  the  com- 
mencement of  his  suit.(i) 

The  term,  also,  has  been  enlarged  after  its  expiration, 
upon  payment  of  costs,  although  the  issue  was  made  up, 
the  special  jury  struck,  and  the  cause  gone  down  to  trial, 
before  the  mistake  was  discovered  ;  the  Court  considering, 
that  it  was  a  plain  mistake  in  the  declaration,  and  might  be 
amended  by  the  writ,  which  spoke  of  a  term  not  yet  ex- 
pired.^) An  enlargement  of  the  term  was  also  permitted, 
by  Lord  Mansfield,  in  a  case  where  a  judgment  in  eject- 
ment in  Ireland  had  been  affirmed,  upon  a  writ  of  error,  in 
the  King's  Bench  in  England,  but,  from  various  delays,  the 
term  in  the  declaration  had  expired  before  the  plaintiff's 
lessor  could  obtain  possession. (w) 

When  the  old  principles  of  the  action  prevailed,  and  the 
term  was  considered  substance,  and  not  amendable,  the 
plaintiff  was  not  nonsuited  if  the  term  expired  before  the 
trial,  but  was  permitted  to  proceed  for  his  damages  and 
costs,  though  not  for  the  recovery  of  his  land  ;  for  the  right 
to  damages  for  the  ouster  remained,  although  the  right  to 
possession  upon  the  lease  was  determined.  It  is  not  pro- 
bable, at  the  present  day,  that  opportunity  will  be  offered 
to  raise  a  point  of  this  nature ;  but  if  the  lessor  of  the  plain- 
tiff should  act  so  negligently  as  to  proceed  to  trial  upon  an 
expired  term,  there  seems  no  reason  why  the  above-men- 
tioned principle  should  not  be  applicable  tp  the  modern 
practice. (T) 


(s)  Doe,  d.  Foxlow,  v.  Jeffries,  K.         (tt)   Vicar*  v.  Ileydon,  Cowp.  841. 
B.  M.  T.  1814.— MS.  (<;)  Capel  v.  Saltonstall,  3  Mod.  249. 

(0  Roe,  d.  Le«,  v.  Ellis,  Blk.  940. 


OP  THE  NOTICE  TO  APPEAR.  205 

In  the  case  of  Goodtitlc  v.  Meymott,  the  court  refused  to 
amend  a  declaration,  in  which  "  the  said  James,"  instead  of 
"'  the  said  John,"  was  said  to  enter  hy  virtue  of  the  demise ; 
and  ;i  ca-e  \\as  cited,  by  Wright,  J.,  in  which  the  premises 
were  laid  to  be  in  Twickenham,  or  Isleworth,  "or  one  of 
them,"  and  the  court  refused  to  let  the  plaintiff  amend,  by 
striking  out  the  disjunctive  words  ;  but  it  seems  that  amend- 
ments have  since  been  permitted,  both  \\\  the  parcels  and 
the  names.(ttf)  And,  in  a  recent  case,  where  after  issue 
joined,  a  summons  was  taken  out  to  show  cause  why  the 
declaration  and  issue  should  not  be  amended,  upon  pay- 
ment of  costs,  by  altering  the  parish,  from  the  parish  of  G., 
to  "  the  parish  of  St.  John  in  G.,"  the  judge  permitted  the 
amendment,  and  refused  to  allow  the  party  to  plead  de  novo, 
notwithstanding  the  case  of  Goodtitle  v.  jMeymott.(x) 

OF  THE  NOTICE  TO  APPEAR. (y~) 

The  name  of  the  tenant  in  possession  must  be  prefixed  to 
the  notice ;  and,  when  the  possession  of  the  disputed  pre- 
mises is  divided  amongst  several,  it  is  usual  to  prefix  the 
names  of  all  the  tenants,  to  each  separate  declaration;  al- 
though it  does  not  seem  necessary  to  prefix  more  than  the 
name  of  the  individual  tenant,  upon  whom  the  particular 
declaration  is  served. (z) 

The  notice  must  require  the  tenant  to  appear,  and  apply 
to  the  court  to  be  admitted  defendant  instead  of  the  casual 
ejector,  within  a  certain  time  after  the  declaration  is  deli- 
vered ;  and  llie  time  when  the  notice  should  require  the 

(u>)  2  Sell.  Prac.  143.  (y)  Appendix,  No.  13. 

(i)  Doe,  d   O'Connell,  v.  Porch.—  (2)  Roe,  d.  Burtton,  v.  Roe,  7  T.  K 

Coram  Heath,  J.    Trin.  Vac.    1814.  477. 
MS. 


OF  THE  NOTICE  TO  APPEAR. 

tenant  to  appear  and  make  this  application,  is  regulated  by 
Ihe  locality  of  the  premises. 

When  the  premises  are  situated  in  London,  or  Middle- 
sex, the  notice  should  be  for  the  tenant  to  appear  "  on  the 
first  day,"  (not  the  essoign  day,)(a)  or  "  within  the  four  first 
days"  of  the  term  next  after  the  delivery  of  the  declara- 
tion ;  and  this  mode  of  expression  should  be  strictly  ob- 
served ;  for,  although  where  the  notice  was  to  appear  "  in 
the  beginning  of  the  term,"  the  court  granted  a  rule  for 
judgment  against  the  casual  ejector  ;(6)  yet,  where  the*no- 
tice  was.  to  appear  "  on  the  morrow  of  the  Holy  Trinity," 
the  judgment  against  the  casual  ejector  was  set  aside,  upon 
the  principle,  that  the  notice  was  designed  to  inform  the  lay 
gents,  of  the  time  of  appearing,  and  should  therefore  be  ex- 
pressed in  such  terms  as  they  might  understand. (c)  It  will, 
however,  be  sufficient  if  the  notice  be  to  appear  generally 
of  the  term ;  but  the  tenant  will  then  have  the  whole  term 
to  appear  in. 

The  notice  usually  specifies  the  term  by  name,  in  which 
the  tenant  is  to  appear,  and  the  declaration  should  regular- 
ly be  entitled  of  the  term  preceding;  but,  in  a  very  recent 
case,  where  a  declaration,  delivered  in  Hilary  vacation,  was 
entitled  of  Easter  term,  and  the  notice  was  to  appear  on 
the  first  day  of  next  term,  the  court  granted  the  rule  abso- 
lute for  judgment  against  the  casual  ejector  in  the  first  in- 
stance during  Easter  term,  considering  that  the  tenant  could 
not  be  misled  by  the  wrong  title  to  the  declaration,  so  as  to 
imagine  he  had  until  Trinity  term  to  appear,  inasmuch  as 


(a)  Uoldfasi    v.    Freeman)    Strap.        (6)  Tredder  v.  Travit,  Barn.  17o' 
1049.  (e)  Sel.  N.  P.  640. 


OF  THE  NOTICE  TO  APPEAR.  207 

the  declaration  was  delivered,  and  the  notice  dated  on  a 
day  antecedent  to  the  essoign  day  of  Easter  term.(rf) 

When  the  premises  are  situated  in  any  other  county  than 
London,  or  Middlesex,  the  notice  should  regularly  require 
the  tenant  to  appear  generally  in  the  term  next  ensuing  the 
delivery  of  the  declaration ;  but  it  will  be  sufficient  when 
the  proceedings  are  in  the  Common  Pleas,  if  it  require  him 
to  appear  in  the  issuable  term,  .next  ensuing  such  delivery, 
althongh  a  nonissuable  term  intervene.  Thus,  when  a  de- 
claration is  entitled  of  Trinity  term,  and  delivered  during 
the  long  vacation,  the  notice  may  require  the  tenant  to  ap- 
pear in  Easter  term.(e) 

The  declaration  must  be  delivered  before  the  essoign  day 
of  the  term,  in  which  the  notice  is  given  to  appear. (f) 

The  notice  should  regularly  be  subscribed  with  the  name 
of  the  casual  ejector,  and  formerly  proceedings  have  been 
set  aside  for  an  irregular  signature  ;  but  it  is  now  sufficient, 
though  certainly  not  correct ;  if  the  notice  be  subscribed 
with  the  name  of  the  plaintiff  in  the  action. (g)[7] 

One  case  only  is  extant,  in  which  an  amendment  has 

(rf)  jftion.  K.  B  E.  T.  1817.  MS.  (g)  Peaceable  v.  Troublesome,  Barn 

(t)  Doe,  d.  Clarke,  v.  Hoe,  4  Taunt.     172.    Hmleicood,  d.  Price,  v.  Thatch- 

738.  er,  3  T.  R.  361. 

(/)   Doe    d.  Bird,  v.  Roe,  Barns. 

172. 


[7]  Defendants  moved  to  set  aside  the  rule  to  appear,  for  a  misdirection  in 
the  notice  to  the  tenants  in  possession,  and  in  their  notice  of  motion,  referred 
to  the  declarations  and  notices  served.  The  court  ruled,  that  they  must  pro- 
duce the  declarations  and  notices  served  upon  them,  or  the  affidavit  of  due- 
service  would  be  sufficient.  Jackson  v.  Stiles,  1  Games'  Rep.  501. 


208  OP  THE  NOTICE  TO  APPEAK. 

been  made,  by  rule  of  court,  in  the  notice  subscribed  to  the 
declaration  ;  although  it  cannot  be  doubted  that  any  amend- 
ments would  now  be  allowed,  which  the  justice  of  the  case 
might  require.  In  the  case  above  alluded  to,  the  lands 
were  situated  in  Devonshire,  and  the  notice  was  for  the  te- 
nant to  appear  in  Michaelmas  term,  when,  according  to  the 
practice  in  country  causes  at  that  time,  it  should  have  been 
to  appear  in  an  issuable  term,  and  the  affidavit  stated,  that 
if  the  lessor  were  not  permitted  to  amend,  he  would  be 
barred,  by  the  statute  of  limitations,  from  bringing  a  new 
ejectment:  the  court  permitted  the  lessor  to  amend  upon 
payment  of  costs.(A) 

C/t)  Doe,  d.  Baas,  v.  Roe,  7  T.  R.  such  change  of  practice  should  not 
469.  It  is  singular,  that  a  practice  have  been  noticed  in  any  of  the  re- 
should  have  obtained  of  giving  noti-  ported  cases. See  1  Caines'  Rep. 

ces  to  tenants  to  appear  in  nonissua-  601.  and  Ib.  249. 
ble,  as  well  as  issuable  terms,  and  that 


JO!) 


CHAPTER  VIII. 


OF  THE  SERVICE  OF  THE  DECLARATION,  AND  PROCEEDINGS 

TO  JUDGMENT  AGAINST  THE  CASUAL  EJECTOR, 

WHEN  NO  APPEARANCE. 


THE  declaration  in  ejectment  being  a  kind  of  process 
to  bring  the  party  interested  into  court,  its  delivery  to  the 
tenant  resembles  the  service  of  a  writ,  rather  than  the  de- 
livery of  a  declaration  ;[8]  and,  as  it  is  the  only  warning 
which  the  tenant  in  possession  receives  of  the  proceedings 
of  the  claimant,  the  courts  are  careful  that  a  proper  de- 
livery be  made,  and  that  the  nature  and  contents  of  the 
declaration  be  explained  at  the  time,  to  the  party  to  whom 
it  is  delivered.  This  delivery  and  explanation  are  gene- 
rally termed  the  service  of  the  declaration;  and  our  next 
inquiry  will  be  directed  to  the  different  modes  by  which 
this  service  may  be  made. 

The  service,  to  be  strictly  regular,  should  be  made  per- 
sonally upon  the  party  in  possession  of  the  premises,  at  the 
time  of  the  service ;  or,  when  the  possession  is  divided 


[8]  Serving  the  declaration  is  the  commencement  of  the  action,  as  much 
as  the  service  of  a  capias  ad  rr.spondendum  iu  a  personal  action.  Baron 
3  Johns.  482. 

27 


210  OF  THE  SERVICE 

amongst  several,  upon  each  party  separately.(t)  When 
the  ejectment  is  brought  by  a  landlord  against  his  tenant, 
and  the  tenant  has  underlet  the  premises,  the  same  rule 
prevails,  and  the  service  should  be  upon  the  under-tenant. 
A  service  upon  the  original  tenant  might,  perhaps,  be  suf- 
ficient ;  but  a  doubt  exists  upon  the  point,  and  it  is,  there- 
fore, more  prudent  to  serve  the  under-tenant.  If,  how- 
ever, the  service  is  upon  the  original  tenant,  and  he  ap- 
pears and  pleads,  he  cannot  afterwards  release  himself  from 
the  action,  upon  the  ground  that  his  under-tenants,  and  not 
himself,  are  in  possession  ;(J)  and,  from  the  language  of 
the  Court,  when  giving  judgment  upon  this  point,  it  seems 
an  inference  may  be  drawn,  that  a  service  on  the  origi- 
nal tenant  will  also  be  sufficient  to  warrant  a  judgment 
against  the  casual  ejector.  [9] 

When  personal  service  can  be  effected,  it  is  immaterial 
whether  it  be  upon  the  premises  demised,  or  elsewhere. (k) 

It  frequent!}',  however,  happens,  from  the  wilful  or  ac- 
cidental absence  of  the  tenant,  or  some  other  circumstance, 
that  the  claimant  is  unable  to  serve  him  personally :  the 
declaration  is  then  delivered  to  one  of  the  family,  nailed  to 
the  door  of  the  house,  or  in  some  other  manner  left  upon 
the  demised  premises  ;  and,  when  any  of  these  irregularities 

(t)  B  N.  P.  PS.  (k)  Savage  v.  Dent,  Stran.   1064 

(j)  Rot  v.  H'iggs,  2  N.  P.  330.  Taylor  v.  Je.fls,  11  Mod.  302. 


[!>]  A  declaration  in  ejectment  was  served  on  the  tenant,  who  soon  after 
quitted  the  possession,  and  was  succeeded  by  another  tenant,  when  a  person, 
actinsr  as  the  plaintiff's  agent,  served  a  second  declaration  on  the  new  tenant. 
Tlie  nlaintiff'c  attorney,  being  ignorant  of  the  second  service,  proceeded  un- 
der the  first  declaration,  and  took  judgment  against  the  casual  ejector.  The 
Court  held,  that  the  second  declaration  was  a  waiver  of  the  first,  and  set  aside 
the  proceedings  with  costs.  Kemblc  v.  Fitch,  1  Johns.  Gas.  414. 


OF  THE  DECLARATION.  211 

happen,  the  service  will  be  considered  good,  or  otherwise, 
according  to  the  particular  circumstances  of  the  case.[l] 
The  power  exercised  by  the  courts  in  this  respect  is  alto- 
gether discretionary  ;  and  it  will  be  necessary  to  enter  ra- 
ther largely  into  a  detail  of  the  cases,  in  order  to  give  a 
clear  idea  of  the  principles  upon  which  they  have  been  de- 
cided. 

When  the  declaration  is  explained  to,  and  left  with,  the 
wife  upon  the  premises,  or  at  the  husband's  house  e:l-c- 
where,  it  will  be  good  service ;(/)  and,  as  the  husband  is 
answerable  for  the  default  of  the  wife,  no  evidence  5eems 
necessary  of  a  subsequent  delivery  of  the  declaration  from 
her  to  him.  It  seems,  also,  that  service  on  the  wife  will  be 
good  any  where ;  provided  it  be  sworn,  in  the  affidav  it  of 
service,  that  she  and  her  husband  were  living  together  as 
man  and  wife  when  the  service  was  made.(m)  But  the 
mere  acknowledgment  of  the  wife,  that  she  has  received 
a  declaration  in  ejectment,  and  given  it  to  her  husband,  if 
it  be  not  personally  served  upon  the  wife,  will  not  be  good 
service  ;(n)  although,  in  a  case  in  the  Common  Pleas, 
where  the  service  was  upon  the  daughter  before  the  essoign 
day,  and  on  a  subsequent  day,  the  wife  acknowledged  that 
she  had  received  the  declaration,  and  showed  it  to  the  attor- 
ney, who  then  read  it  over  to  her,  and  explained  it,  upon  which 

(0  f>oe,  d.  Baddam,  v.  Roe,  2  B.  &  (m)  Jtnny,  d.  Pretlon,  v.  Culls,  1 

P.  65    Goodriglil,  d.  Jones,  v.  Thrust-  N.  R.  309. 

out,  W.  Blk.  800.    Doe,d.Moilatul,Y.  (n)  Goodlitle,  d.  Read,  v.  Badl'Ule, 

lus,  6  T.  R.  T«M.  1  B.  b  P.  384. 


[1]  Where  a  totally  informal  declaration,  with  the  names  of  the  town  mid 
county  Mank,  was  served  on  the  tenants,  it  was  held  to  be  sufficient  notice  to 
put  tlirin  upon  inquiry,  and  a  subsequent  rule  to  amend  affixed  in  the  <  K  rk'< 
office,  was  adjudged  to  be  good  service.  Jackson  v.  Stilts,  1  Cnincs'  Rep.  240. 
and  especially  when  a  statute  of  limitation?  was  about  to  attu- •)>. 


212  OF  THE  SERVICE 

the  wife  said,  that  the  paper  should  be  sent  to  her  husband, 
the  service  was  held  sufficient. (o) 

The  court  were  at  first  much  inclined  to  refuse  the  rule, 
in  this  latter  case  ;  because  it  did  not  clearly  appear  from 
the  affidavit,  that  the  declaration  came  to  the  hands  of  the 
wife  before  the  essoign  day  of  the  term,  but  ultimately 
made  the  rule  absolute  on  the  authority  of  the  case  of 
Goodtitle*  d.  Massa,  v.  Thrustout.(p)  In  the  court  of  King's 
Bench,  such  an  omission  would  be  a  fatal  objection  to  the 
service,  (q) 

When  two  tenants  are  in  possession  of  the  same  pre- 
mises, service  upon  one  of  them  will  be  good  service  upon 
boih  ;(<?)  but  service  upon  the  wife  of  one  of  two  tenants  in 
possession  will  not  bind  the  co-tenant.(r) 

Service  of  the  declaration  upon  the  child,  or  servant,  of 
the  tenant,  will  be  held  sufficient  service  by  the  court  of 
Common  Pleas ;  provided  it  appears  from  the  affidavit,  that 
the  declaration  was  delivered  on  the  premises  before  the 
essoign  day  of  the  term,(s)  and  that  the  tenant  has  since 
acknowledged  the  receipt  of  such  declaration ;  but  in  the 
court  of  King's  Bench  it  must  also  appear,  upon  the  affi- 
davit, that  the  tenant  has  acknowledged  himself  to  have  re- 
ceived such  declaration,  or  to  have  known  of  the  service 
thereof,  previously  to  the  essoigu  day  of  the  term.(/] 

Where  the  ejectment  was  brought  for  a  house,  which 

(o)  Smith,  d.  Lord  Stourlon,  v.  (s)  Smitli,  d.  Lord  Slourton,  v. 

Hunt,  1  H.  Blk.  644.  Hurst,  1  H.  Blk.  644. 

(f)  Barn.  183.  (/)    Roe  d.  Hambrook,  \.  Doe,   14 

(</)  Doe,  d.  Bailty  v.  Roe,  1  B.  Si  East,  441.  Doe,  d.  Wilson,  \.  Rot. 

P.  369.  T.  T.  1815.— .MS. 

(r)  Wood.  L.  fc  T.  463 


OP  THE  DECLARATION.  215 

was  rented  by  the  churchwardens  and  overseers  of  the  pa- 
rish, for  the  purpose  of  accommodating  some  of  the  parish 
poor,  a  service  of  the  declaration  upon  the  churchwardens 
and  overseers  was  held  sufficient,  although  they  did  not 
occupy  the  house,  otherwise  than  by  placing  the  poor  in 
it.(w)  And  in  an  ejectment  for  a  chapel,  the  service  may 
be  made  on  the  chapel-wardens,  or  on  the  persons  to  whom 
the  keys  are  intrusted. (v)  But  where  the  ejectment  is  for  a 
house,  service  upon  the  person  having  the  charge  of  the  keys 
in  order  to  let  the  house,  will  not  be  good  service  ;(a>)  and 
service  upon  a  person  appointed  by  the  Court  of  Chancery 
to  manage  an  estate  for  an  infant,  although  the  estate  con- 
sisted of  a  large  wood,  of  which  no  tenant  was  in  possession, 
has  also  been  held  insufficient,  as  being  nothing  more  than 
a  service  on  a  gentleman's  bailiff.(o;) 

In  the  preceding  cases  no  wilful  opposition  appears  on 
the  part  of  the  tenant,  to  the  service  of  the  declaration  ; 
and  such  of  the  services  already  mentioned  as  are  consider- 
ed good,  are  called  regular  services ;  but  when  the  tenant 
absconds,  or  does  any  act  which  shows  a  resolution  not  to 
receive  the  declaration,  the  Court,  upon  affidavit  of  facts, 
will  sometimes  allow  that  to  be  good  service,  which  other- 
wise would  be  deemed  irregular. 

Thus,  a  tender  of  the  declaration,  and  reading  the  no- 
tice aloud,  although  the  tenant  refuse  to  receive  it,  or 
run  away  and  shut  the  doors,  or  threaten  with  a  gun  to  shoot 
ihe  person  serving  it,  if  he  should  come  near  ;  throwing  the 
declaration  in  at  the  window,  sticking  it  against  the  door. 


(w)     Tapper,  d.    Mercer,  v.    Doe,        (w)  Man.  12  Mod.  313. 
Barn.  181.  (x)   Goodtiilc,  d.  Koberit,  v.   Bad- 

(V)  Run.  Eject.  13*  HtU,  1  B.  &.  P.  385. 


214  OF  THE  SERVICE 

or  leaving  it  at  the  house,  upon  the  servants  refusing  to  call 
their  master,  and  the  like,  have,  upon  application  to  the 
court,  been  holden  sufficient.  So,  also,  a  tender  of  the  de- 
claration in  the  shop,  and  reading  the  notice  aloud  there  to 
the  wife,  when  the  tenant  refused  to  receive  the  declara- 
tion ;  delivering  it  to  the  niece  of  the  tenant,  she  being  the 
manager  of  the  house,  and  the  tenant  having  absconded; 
nailing  the  declaration  on  the  barn  door  of  the  premises,  in 
which  barn  the  tenant  had  occasionally  slept,  there  being 
no  dwelling-house  on  the  premises,  and  the  tenant  not  to 
be  found  at  his  last  place  of  abode,  have  respectively  been 
considered  good  and  sufficient  services.(t/) 

In  a  case  where  the  tenant  in  possession  was  personated, 
at  the  time  of  the  service,  by  another,  who  accepted  the 
service  in  her  name,  the  Court  granted  a  rule  to  show  cause, 
why  this  should  not  be  deemed  good  service  upon  the  te- 
nant herself,  and  why  judgment  should  not  be  signed  against 
the  casual  ejector,  in  default  of  her  appearing :  and  that, 
leaving  a  copy  of  this  rule  at  her  house,  with  some  person 
there,  or,  if  no  one  was  to  be  met  with,  affixing  it  to  the 
door,  should  be  good  service  of  such  rule.  And  this  rule 
was  afterwards  made  absolute,  upon  an  affidavit,  "  that  the 
tenant  was  either  not  at  home,  or  (if  at  home)  was  denied  ; 
and,  that  her  servant-maid  was  at  home,  but  could  not  be 
served  ;  whereupon  a  copy  of  the  rule  was  affixed  to  the 
door  of  the  house  ;"  and  moreover,  "  that  at  a  subsequent 


(y)  Douglass,  v.  ,  Stran.  575.  Barn.    188.      Fenn,  d.   Hildyard,   v. 

Smalley  v.  Aea/e,  Barn.  173.  Hair  Dean,  Barn.  192.  Sprighlly,  d.  Coi- 
tal v.  Wedgwood,  Barn.  174.  Due,  lint,  v.  Duncli,  Burr.  1116.  Doe,  d. 
d.  Dry,  v.  Roe,  Barn.  178.  Fanner,  JVeo/e,  v.  Roe,  2  Wils.  263.  Fenn,  d. 
U.  Miles,  v.  Tlnustout,  Barn.  180.  Buckle,  v.  Roe,  1  N.  R.  293.  Doe,d. 
Bagshnw,  d.  Mdon,  v.  Toogood,  Hervey,  v.  Roe,  3  Price,  112. 
Barn.  185.  Short,  d.  £lincf,  v.  King, 


OF  THE  DECLARATION.  215 

day,"  (upon  a  doubt  whether  what  had  been  already  done 
was  sufficient,)  "  the  maid  being  at  home,  and  opening  the 
window,  but  refusing  to  open  the  door,  and  denying  that 
her  mistress  was  at  home,  another  copy  was  affixed  on  the 
door,  and  the  maid  was  told  the  effect  of  it ;  and  another 
copy  was  thrown  in  at  the  window,  and  the  original  rule  was 
shown  to  the  maid.'\r) 

In  a  case,  where  it  appeared  in  the  affidavit  of  service, 
that  one  of  the  tenants  was  a  lunatic,  and  that  one  C.  lived 
with  her,  transacted  her  business,  and  had  the  sole  conduct 
thereof,  and  of  her  person  ;  but  would  not  permit  the^  de- 
ponent to  have  access  to  her,  in  order  to  serve  her  with  the 
declaration,  whereupon  he  delivered  it  to  the  said  C. ;  a 
rule  was  granted,  that  the  lunatic  and  C.  should  both  show 
cause,  why  such  service  should  not  be  sufficient;  and  the 
service  on  C.  was  allowed  to  be  good. (a) 

But  where,  on  cause  being  shown  against  a  rule  for  good 
service  of  a  declaration  in  ejectment,  it  appeared,  that  the 
declaration  was  tendered  on  the  18th,  but  that  the  defend- 
ant's servant  said,  he  had  orders  not  to  receive  any  such 
thing  ;  whereupon  it  was  not  served  on  that  day,  but  wa» 
left  at  the  house  upon  the  day  following ;  the  Court,  (not- 
withstanding that  the  defendant  knew  of  the  intention  to 
serve  him,)  said,  "  You  should  have  left  the  declaration  on 
the  18th."  We  sometimes  by  rule  make  that  service,  under 
particular  circumstances,  good,  which  otherwise  would  have 
been  imperfect;  but  here  there  was  no  service  on  the  pro- 
per day,  and  we  cannot  antedate  the  service  ;  and  the 
day  was  dischargcd.(A) 


(«)  Fenn,  d.  Tyrref,  v.  7>cn«,  Burr.        (a)  /Joe.d  Wright, v.  /.'or, Barn.  199 
U81.  (6)  Wood.  L.  k  T.  466. 


216  OF  THE  AFFIDAVIT  OF  SERVICE. 

Where  the  premises  consisted  of  a  mansion,  and  four 
small  houses  in  a  yard,  surrounded  by  a  wall,  through  which 
was  a  door  to  them,  forming  the  only  means  of  access,  in 
one  of  which  small  houses  resided  A.,  who  was  permitted 
to  live  there  merely  to  take  care  of  them  and  of  the  man- 
sion-house, and  the  rest  of  the  messuages  were  vacant : 
upon  motion,  that  service  on  A.  might  be  deemed  good 
service  under  those  circumstances,  the  Court  refused  the 
motion,  and  recommended  the  plaintiff  to  affix  a  declara- 
tion on  the  empty  houses,  and  then  to  move  that  it  be  deem- 
ed good  service.(c) 

When  the  service  is  good  for  part,  and  bad  for  part,  the 
lessor  may  recover  those  premises  for  which  the  service  is 
good  ;  but  if  he  proceed  for  all,  and  obtain  possession  by 
means  of  a  judgment  against  the  casual  ejector,  the  Court 
will  compel  him  to  make  restitution  of  that  part,  for  which 
the  service  was  bad.(d) 

Or  THE  AFFIDAVIT  OF  SERVICE. (e) 

When  the  service  of  the  declaration  is  made  in  the  regu- 
lar way,  the  next  step  to  be  taken,  in  order  to  obtain  judg- 
ment against  the  casual  ejector,  is  to  make  an  affidavit  of 
luch  service ;  which  affidavit  is  annexed  to  the  declaration, 
and  is  the  ground  upon  which  the  rule  for  judgment  is  to  be 
moved  for.  But,  when  the  circumstances  of  the  case  are 
special,  it  is  usual  to  move,  in  the  first  instance,  for  a  rule 
to  show  cause  why  the  service  mentioned  in  the  affidavit, 
should  not  be  deemed  good  service ;  and  this  motion  may 
be  made,  either  before,  or  after  the  service  of  the  declara- 


(c)  Ibid.  464.  (e)  Appendix,  No.  16,  17,  18. 

(d)  Ibid.  463.    Appendix,  No.  41. 


OF  THE  AFFIDAVIT  OF  SERVICE.  217 

lion;  although,  if  the  lessor  be  aware  of  the  difficult  ic-  In 
will  have  to  encounter,  it  is  better  to  make  an  affidavit  of 
the  circumstances,  which  are  likely  to  happen,  and  move, 
prior  to  the  service,  for  a  rule  to  show  cause,  why  a  service 
of  such  a  nature  should  not  be  sufficient. (/) 

The  affidavit  may  be  sworn  before  a  judge,  or  a  com- 
missioner, and  should  regularly  be  made  by  the  person 
who  served  the  declaration  ;  although  the  Court  have  been 
satisfied  with  the  affidavit  of  a  person,  who  saw  the  decla- 
ration served  upon,  and  heard  it  explained  to,  the  tenant 
in  possession. (g) 

When  no  special  circumstances  take  the  case  out  of  the 
general  rule,  the  affidavit  must  state  that  the  declaration 
was  delivered  to  the  tenant  in  possession,  or  his  wife,  &c. 
and  that  the  notice,  thereto  annexed,  was  read  and  ex- 
plained at  the  time  of  the  delivery,  or  generally  that  the 
tenant  was  informed  of  the  intent  and  meaning  of  the  ser- 
vice, (h)  If  the  affidavit  only  state  that  the  notice  was  read, 
the  service  will  not  be  sufficient,(z)  unless  the  tenant  after- 
wards acknowledge  that  he  understands  the  meaning  and 
intention  of  the  service ;  but  with  such  acknowledgment 
the  service  will  be  good,  without  any  statement  of  the  read- 
ing or  explanation  of  the  notice  or  service. (y) 

If  the  service  was  upon  the  wife,  the  affidavit  must  also 
state  that  the  service  was  on  the  premises,  or  at  the  hua- 


(/)   Methold  v.  .Voright,  W.  Blk.        (A)  Appendix,  No.  16,  17,  18. 
290.      Gulliver  v    Wagttaff,  \V.  Blk.        (0  Doe,  d.  Whitjidd,  v.  Rot,  K.  B 
317.  T.  T.  1815.— MS. 

(g)    Gooillille,  d.  Wanklen,  v.  Bad-        (j)  Doe,  A.  Quint  in  v.  Roe,  K.  B. 
ti'le,  2  B.  4tP.  120.  T.  T.  1810.— MS. 

28 


218  OF  THE  AFFIDAVIT  OF  SERVICE. 

band's  house,(£)  or  that  the  husband  and  wife  were  living 
together ;(/)  and,  if  the  service  were  on  the  child  or  servant 
of  the  tenant,  "  that  the  service  was  afterwards  acknow- 
ledged by  the  tenant,"  and  also,  provided  the  proceedings 
are  in  the  King's  Bench,  that  the  tenant  received  the  de- 
claration, or  acknowledged  that  he  knew  of  the  service 
thereof,(m)  before  the  essoign  day  of  the  term.(n) 

The  affidavit  must  be  positive,  that  the  person,  to  whom 
the  notice  was  addressed,  was  the  tenant  in  possession,  or 
that  he  acknowledged  himself  to  be  so ;  for  no  one  should 
be  evicted  from  possession  without  a  positive  affidavit,  on 
which,  if  it  be  false,  the  person  who  made  it  may  be  sub- 
jected to  the  penalties  of  perjury. (o)  An  affidavit,  there- 
fore, that  the  deponent  did  serve  A.  B.,  tenant  in  posses- 
sion, or  his  wife,  was  held  not  to  be  sufficiently  certain  as 
to  eithcr.(^)  So  also  an  affidavit,  that  the  deponent  did 
serve  the  wives  of  Jl.  and  B.,  who,  or  one  of  them,  are  te- 
nants in  possession,  was  held  insufficient.^) 

If  several  persons  be  in  possession  of  the  disputed  pre- 
mises, and  separate  declarations  in  ejectment  be  served 
upon  them,  one  affidavit  of  the  service  upon  all,  annexed 
to  the  copy  of  one  declaration,  is  sufficient,  provided  one 
action  of  ejectment  only  be  intended  ;(r)  but  if  the  eject- 
ments are  made  several,  so  as  to  have  separate  judgments, 
writs  of  possession,  &c.  then  separate  affidavits,  of  the  se- 


(A-)    Doe,  d.  Morland,  v.  Bayliss,6  (o)   Anon.  1  Barn.  330.     Goodtitlt 

T.  R.  7t>5  v.  Doris,  I  Barn.  429. 

(/)  Jenny,  d.  Preston,  v.  Cults,  IN.  (p)  Birkbeck  v.  Hughes,  Barn.  173. 

R.308.— Appendix,  No.  18.  (y)  Harding,  d.  Baker,  v.  Green- 

(m)  Doe,  d.  Wilson,  v.  Roe,  K.  B.  smith,  Barn.  174. 

T.  T.  1815— MS.  (r)  Appendix,  No.  17. 

(n)  Roe,  d.  Hambrook,  \.  Dot,  14 
East,  441. 


OF  JUDGMENT  AGAINST  THE  CASUAL  EJECTOR.    219 

veral  services  upon  the  different  tenants,  must  be  annexed 
to  copies  of  the  several  declarations  respectively,  (s) 

When  one  action  only  is  intended,  the  names  of  all  the 
the  tenants  are  generally  prefixed  to  each  notice  ;  but  in  a 
case  where,  in  the  several  declarations  served,  the  name  of 
the  individual  tenant  alone,  to  whom  any  particular  decla- 
ration was  delivered,  was  prefixed  to  the  notice  to  such  de- 
claration, instead  of  the  names  of  all  the  tenants,  so  that  the 
person  making  the  affidavit  of  service  could  not  swear  that 
a  copy  of  any  one  declaration  and  notice  had  been  served 
on  all  the  tenants,  the  Court,  notwithstanding,  thought  one 
rule  sufficient,  on  motion  for  judgment  against  the  casual 
ejector.(f 

- 

It  often  happens  that  an  affidavit  of  the  service  of  the  de- 
claration is  defective  ;  as,  for  example,  from  not  stating  the 
particular  mode  in  which  the  party  was  served  :(«)  in  such 
case,  a  supplemental  affidavit  should  be  made,  and  taken 
to  the  clerk  of  the  rules,  who  will  attend  a  judge  thereon, 
and  obtain  an  order  to  draw  up  the  rule  for  judgment. 

OF  JUDGMENT  AGAINST  THE  CASUAL  EJECTOR.(TJ) 

The  motion  for  judgment  against  the  casual  ejector,  in 
ordinary  cases,  is  of  course ;  that  is,  such  only  as  requires 
the  signature  of  a  counsel,  or  sergeant ;  and  after  it  is 
signed,  it  must  be  taken  by  the  attorney  to  the  clerk  of  the 
rules  in  the  King's  Bench,  or  to  the  secondary  of  the  Com- 
mon Pleas  ;  as  these  motions  will  not  be  received  in  court 


(4)  2  Sell.  Prac.  100.  (u)   Jenny,  d.  Preston,  v.  Culls,  1 

(0  Roe,  d.  Burlton,  v.  Roe,  7  T.  R.    N.  R.  3U8. 
477.  (v)  Ante,  216. 


220  OF  THE  TIME  ALLOWED 

unless  there  is  something  special  in  the  service  of  the  decla- 
ration :  but  when  any  special  circumstances  exist,  the  rule 
in  i-i  In-  moved  for  as  in  other  cases.  The  rule  granted 
upon  this  motion  is,  that  the  judgment  be  entered  for  the 
plaintiff  against  the  casual  ejector  by  default,  unless  the 
tenant  in  possession  appear,  and  plead  to  issue,  within  a 
certain  time  mentioned  in  the  rule.(w)[2] 

The  time  for  moving  Cor  judgment,  as  also  the  time  for 
the  defendant's  appearance,  is  governed  by  the  locality  of 
the  premises,  and  the  time  mentioned  in  the  notice,  when 
the  defendant  is  to  appear. 

In  the  King's  Bench,  if  the  premises  are  situated  in  Lon- 
don, or  Middlesex,  and  the  notice  requires  the  tenant  to 
appear  on  the  first  day,  or  within  the  first  four  days  of  the 
next  term,  the  motion  for  judgment  against  the  casual 
ejector  should  regularly  be  made  in  the  beginning  of  that 
term ;  and  then  the  tenant  must  appear  within  four  days, 
inclusive,  after  the  motion,  or  the  plaintiff  will  be  entitled 
to  judgment.  If,  however,  the  motion  be  deferred  until 
the  latter  end  of  the  term,  the  Court  will  order  the  tenant 
to  appear  in  two  or  three  days,  and  sometimes  immediately, 
that  the  plaintiff  may  proceed  to  trial  at  the  sittings  after 
term  ;  but,  if  the  motion  be  not  made  before  the  last  four 
days  of  the  term,  the  tenant  need  not  appear,  until  two 
days  before  the  essoign  day  of  the  subsequent  term. 

(w)  Appendix,  No.  20,  21,  22. 


[2]  A  default  for  the  tenant's  not  appearing,  must  be  entered  before  judg- 
ment by  default  can  be  entered  against  the  casual  ejector.  Jackson  v.  Smith, 
1  Johns.  Cas.  106. 

A  default,  for  want  of  a  plea,  must  be  entered  against  the  casual  ejector, 
and  not  against  the  tenant.  Jackson  v.  Vischcr.  2  Johns.  Cas.  106. 


FOR  APPEARANCE.  221 

In  the  Common  Pleas,  if  the  premises  are  situated  in 
London,  or  Middlesex,  and  the  tenant  has  notice  to  appear 
in  the  brimming  of  the  term,  judgment  against  the  casual 
ejector  must  be  moved  for,  within  one  week  next  after  the 
first  day  of  every  Michaelmas  and  Easter  term,  and  within 
four  days  next  after  the  first  day  of  every  Hilary  and  Trinity 
term,(x)  except,  it  seems,  when  the  tenant  has  absconded, 
and  the  proceedings  are  upon  the  statute  of  4  Geo.  II., 
and  then  the  motion  may  be  made  at  any  time  during  the 
term ;  because  the  rule  of  32  Car.  II.,  relates  only  to 
declarations  in  ejectment,  served  upon  tenants  in  posses- 
sion.^) 

When  the  premises  are  situated  in  London  or  Middle- 
sex, and  the  notice  is  to  appear  generally  of  the  term,  or 
being  situated  elsewhere,  the  notice  is  to  appear  in  an  issu- 
able  term,  judgment  must  be  moved  for,  both  in  the  King's 
Bench  and  Common  pleas,  during  the  term  in  which  the 
notice  is  given  to  appear. 

When  the  cause  of  action  arises  elsewhere  than  in  Lon- 
don or  Middlesex,  and  the  declaration  is  delivered,  with  a 
notice  to  appear  in  Michaelmas  or  Easter  term,  if  the  eject- 
ment be  brought  in  the  Court  of  Common  Pleas,  the  rule 
for  judgment  may  be  moved  for  at  any  time  during  the  next 
issuable  term ;  but  if  the  proceedings  are  in  the  Court  of 
King's  Bench,  such  motion  must  be  made  during  the  same 
term  in  which  the  tenant  has  notice  to  appear.  If,  how- 
ever, the  lessor  of  the  plaintiff  neglect  to  make  this  motion 
during  that  term,  the  Court  will  grant  him  a  rule  to  show 

(s)  Reg.  Trio.  82  Car.  II.  C.  B.  rcct,   it   seems  to  extend  to  similar 

(y)  A'etfo/tre,  d.  Parsons,  v.   Poti-  cases   when  thn  prof-fling's  are   at 

/tre,  Barn.  172      If  the  principle  upon  common  law. 

which  tliis  exception  i«  taken  he  ror- 


OF  THE  TIME  ALLOWED,    &C. 

cause  at  any  time  during  the  next  is  suable  term  ;(?)  but  if 
he  delay  to  move  for  such  rule,  until  within  the  four  last 
days  of  such  issuable  term,  he  cannot  make  it  absolute  un- 
til the  succeeding  term. (a) 

Notwithstanding  this  difference  in  the  practice  of  the  two 
courts,  as  to  the  time  of  moving  for  judgment  against  the 
casual  ejector,  the  time  for  the  appearance  of  the  tenant  is 
in  both  courts  the  same ;  that  is  to  say,  he  has  in  all  cases, 
until  four  days  after  the  next  issuable  term,  to  appear  and 
plead  :  and  if  the  lands  be  situated  in  Cumberland,  or  in 
any  other  county,  where  the  assizes  are  held  but  once  a 
year,  whatever  may  be  the  term  in  which  the  notice  is  given, 
the  tenant  is  not  compellable  to  appear  until  four  days  next 
after  the  term  preceding  the  assizes. 

By  a  rule  of  the  Court  of  King's  Bench,  which  has  been 
adopted  by  the  Court  of  Common  Pleas,(6)  the  clerk  of  the 
rules  now  keeps  a  book,  in  which  are  entered  all  the  rules 
delivered  out  in  ejectments,  instead  of  that  formerly  kept, 
which  contained  a  list  of  the  ejectments  moved.  The 
entry  must  specify  the  number  of  the  entry,  the  county  in 
which  the  premises  lie,  the  name  of  the  nominal  plaintiff, 
the  first  lessor  of  the  plaintiff,  with  the  words  "  and  others," 
if  more  than  one,  and  also  the  name  of  the  Casual  ejector. 
And  unless  the  rule  for  judgment  be  drawn  up,  and  taken 
away  from  the  office  of  the  clerk  of  the  rules  within  two 
days  after  the  end  of  the  term,  in  which  the  ejectment  shall 
be  moved,  no  rule  is  to  be  drawn  up  or  entered,  nor  any 
proceeding  had  in  such  ejectment. 


(2)  Doe,  d.  Pearson,  v.  Rot,  K.  B.     v.  Badlitle,  K.  B.  H.  T.  1814.  MS. 
H.  T.  1814.  MS.  (6)  M.  T.  31  Gco.  III.  4  T.  R.  1  £. 

(«)  GoodKlle,  d.  Duke  of  Richmond,    T.  48  Geo.  III.  1  Taunt.  317. 


THE  CASUAL  EJECTOR.  223 

When  the  proceedings  are  in  the  King's  Bench  by  bill, 
bail  must  he  tiled  for  the  casual  ejector  before  the  judgment 
can  be  signed  against  him,  or  the  Court  will  set  the  judg- 
ment aside  ;(c)  but  the  bail  need  not  be  filed  until  after  the 
rule  for  judgment  is  drawn  up.(/J) 

The  reason  for  this  form  seems  to  be,  that  there  is  no 
cause  in  court  against  the  casual  ejector,  before  bail  is 
filed ;  and,  therefore,  nothing  upon  which  to  ground  the 
judgment.(e)  But  where  no  bail  was  filed  in  ejectment, 
and  a  writ  of  error  was  brought,  and  it  appeared  by  the  at- 
torney's books,  that  the  attorney  had  his  fee  to  file  bail, 
but  was  since  dead,  the  Court  ordered  bail  to  be  filed  nunc 
pro  tune,  that  no  error  might  appear  upon  the  record  ;  be- 
cause, as  it  was  on  the  part  of  the  defendant  to  file  bail, 
therefore  he  should  not  be  allowed  to  take  advantage  of 
his  own  error;  and  although  the  plaintiff  proceeded  with- 
out any  bail  filed  by  the  defendant,  yet  as  the  defendant's 
attorney  had  had  his  fee  to  file  such  bail,  and  as  there  was 
no  proper  remedy  against  the  defendant,  because  he  had 
given  the  fee,  nor  against  the  attorney,  because  he  was 
dead,  it  therefore  became  the  justice  of  the  court  to  set  it 
right,  that  the  plaintiff  might  have  no  mischief.(/) 

In  the  time  of  Charles  II.  the  Court  published  a  rule,(g) 
that  no  person  should  be  permitted  to  take  out  judgment 


(c)  Boiukiery.  Friend,  2  Sliow.  249.  scarcely  consistent  with  the  modem 

(rf)  Gilb.  Eject.  21.  principles  of  the  remedy.  Gilb.  Eject, 

(e)  It  has  been  said,  that  if  the  ten-  22. 

ant  appear,  and  the  cause  go  on  to        (/)   Gilb.  Eject.  22.      This    casr 

trial,  the  Court  will  not  compel  him  (if  seems  scarcely  applicable  to  the  mo- 

thr  proceedings  are  by  bill)  to  confess  dern  practice.     (Vide,  post,  Writ  of 

lease,  entry,  and  ouster,  unless  com-  Error  ) 

raon  bail  has  been  filed  for  the  casual         (g)  Reg.  Trin.  14  Car.  II.  and  Mich 

ejector ;    but    this     doctrine    teem*  33  Car.  II. 


£Z4t  OF  FILING  COMMON  BAIL. 

against  the  casual  ejector,  without  a  certificate  that  a  latitat 
had  been  taken  out,  and  bail  filed ;  because  the  Court  had 
no  authority  to  proceed  by  bill,  unless  the  defendant  ap- 
peared to  be  a  prisoner  of  the  court.  But  this  certificate 
is  not  now  required,  nor  is  a  latitat  necessary  ;  for  when 
the  casual  ejector  finds  common  bail,  he  admits  himself  to 
be  a  prisoner  of  the  court,  and  whether  he  came  into  court 
regularly  by  latitat,  or  not,  yet  the  judgment  is  not  coram 
non  judice.(h) 

When  the  time  appointed  for  the  appearance  of  the  land- 
lord, or  tenant,  has  expired,  it  is  not  necessary  to  give  a 
rule  to  plead,  but  judgment  may  at  once  be  signed  against 
the  casual  ejector,  provided  the  party  interested  has  ne- 
glected to  appear;  which  fact  is  ascertained  by  searching 
the  ejectment  books  of  the  judges  in  the  King's  Bench  and 
the  prothonotary's  plea  book  in  the  Common  Pleas.  A  rule 
for  judgment  must  then  be  drawn  up  with  the  clerk  of  the 
rules  in  the  former,  and  the  secondary  in  the  latter  court ; 
and  an  incipitur  of  the  declaration  made  on  a  proper  stamp, 
and  also  on  a  roll  of  that  term.  These  must  be  then  taken 
to  the  clerk  of  the  judgments  in  the  King's  Bench,  and  to 
the  prothonotary  in  the  Common  Pleas,  (together,  when 
the  proceedings  are  in  the  Common  Pleas,  with  a  warrant 
of  attorney  for  the  defendant,)  and  judgment  will  then  be 
signed  accordingly.(i) 

The  judgment,  however,  must  not  be  signed,  until  the 
afternoon  of  the  day  next  after  that  on  which  the  rule  ex- 
pires ;  and  if  Sunday  happen  to  be  the  last  day,  not  until 
the  afternoon  of  Tuesday. (j) 

(ft)  Gilb.  Eject.  22.  (j)  Hyde,  d.  Culliford,  v.  Thnul^ 

(i)  App.  No.  23.  out,  Say.  308. 


THE  CASUAL  EJECTOR.  225 

After  the  judgment  is  signed,  the  writ  of  possession  must 
be  made  out,  (together  with  the  praecipe  for  it,  if  in  the 
King's  Bench,)  and  delivered  to  the  sheriff,  who  will  exe- 
cute the  same  by  giving  possession  of  the  premises  to  the 
plaintiff's  lessor. 

Judgments  against  the  casual  ejector  irregularly  obtain* 
ed,  will,  as  a  matter  of  course,  be  set  aside  ;[3]  and  as  the 
situations  of  claimant  and  defendant  in  ejectment,  are  ma- 
terially different,  the  courts  are  liberal  in  their  rules  for 
setting  aside  judgments  against  the  casual  ejector,  although 
regularly  signed ;  and  will  grant  them  even  after  execution 
executed,  upon  affidavit  of  merits,  or  other  circumstances, 
which  at  their  discretion  they  may  deem  sufficient.^)  The 
regular  mode  of  setting  aside  such  judgments  is  by  rule  of 
court,  for  the  party  having  obtained  the  judgment  to  give 
up  the  possession  ;  but  if  the  circumstances  of  the  case  re- 
quire it,  the  courts  will  order  a  writ  of  restitution  to  be  is- 
sued.(0 

(k)  Doe,  d.  Troughlon,  v.  Roe,  ny,  v.  Roe,  5  Taunt.  205.  Sed  vide 
Burr.  195MJ.  Dohbs  v.  Passer,  Stran.  Doe,  d.  Ledger,  v.  Roe,  3  Taunt.  606. 
975.  Mason,  d.  Kciidale,  v.  Hodgson,  (I)  Goodright,  d.  Russell,  v.  JVb- 
Bara.  250.  Doe,  d.  Grocer's  Compa-  right,  Barn.  178.  Dacies  v.  Doe,  W, 

Blk.  892.     Appendix,  No.  41. 


[3]  Where  the  tenant  swears  to  merits,  and  no  trial  has  been  lost,  a  regu- 
lar default  will  be  set  aside,  and  a  writ  of  restitution  ordered  on  payment  of 
costs.  Jackson  v.  Stiles,  4  Johns.  489.  1  Cai  tics'  Rep.  603. 

The  Court  will  go  further  to  set  asid«  a  default  in  ejectment,  than  in  any 
other  action.  Ibid  ;  and  where  tenant  swore,  that  he  supposed  the  Supreme 
Court  was  held  at  the  Circuit,  and  where  a  trial  had  been  lost,  default  was  cet 
aside  on  payment  of  costs.  Jmckton  v.  Stilu,  3  Caines'  Rep.  139. 

29 


CHAPTER  IX. 


OF  THE  APPEARANCE— PLEA— AND  ISStJK 


IN  the  preceding  chapter,  the  suit  has  been  conducted 
to  its  termination,  when  no  appearance  is  entered  in  pur- 
suance of  the  notice  subscribed  to  the  declaration ;  we  must 
now  consider,  who  may  appear  and  defend  the  action,  and 
in  what  manner  such  appearance  should  be  made. 

Notwithstanding  the  power  possessed  by  the  courts  of 
framing  rules  for  the  improvement  of  this  remedy,  the  in- 
terference of  the  legislature  has,  at  times,  been  called  for, 
and  it  has  been  most  beneficially  exerted  in  regulating  the 
appearances  to  the  action.  The  tenant  in  possession,  be- 
ing the  person  prima  facie  interested,  is,  of  course,  the  party 
on  whom  the  declaration  is  always  served ;  although  it  fre- 
quently happens  in  practice,  that  the  lands  belong  to  some 
third  person  out  of  possession,  to  whom  such  service  can  af- 
ford no  information  of  the  proceedings  against  him,  and 
who,  by  the  common  law,  has  no  remedy  against  his  tenant, 
if  he  omit  to  give  him  notice  of  them.  By  the  rules  and 
practice  of  the  courts,  also,  (for  it  would  scarcely  be  correct 
to  say  by  the  common  law,)  the  landlord,  it  seems,  was  not 
permitted  to  defend,  even  when  he  did  receive  notice,  un- 
less the  tenant  consented  to  become  a  co-defendant  with 


WHO  MAT  APPEAR.  227 

him  ;(m)  and  no  means  existed  by  which  the  tenant  could 
be  compelled  to  appear,  and  be  made  such  co-defendant.(n) 
This  system  occasioned  great  inconvenience  to  landlords. 
The  tenants,  from  negligence  or  fraud,  frequently  omitted 
to  appear  themselves,  or  to  give  to  the  landlords  the  neces- 
sary notice  :  and  although  judgments  against  the  casual  ejec- 
tor have  been  set  aside,  upon  affidavits  of  circumstances  of 
this  nature,  the  remedy  was  still  very  incomplete. (o) 

To  remedy  these  imperfections,  by  the  statute  1 1  Geo.  II. 
c.  19.  s.  13.,  it  is  enacted,  "  That  it  shall  and  may  be  law- 
"  ful  for  the  court  in  which  an  ejectment  is  brought,  to  suffer 
"  the  landlord  or  landlords  to  make  him,  her,  or  themselves 
"  defendant  or  defendants,  by  joining  with  the  tenant  or 
"  tenants,  to  whom  such  declaration  in  ejectment  shall  be 
"  delivered,  in  case  he  or  they  shall  appear ;  but  in  case 
"  such  tenant  or  tenants  shall  refuse,  or  neglect  to  appear, 
"judgment  shall  be  signed  against  the  casual  ejector  for 
"  want  of  such  appearance  ;  but  if  the  landlord  or  land- 
"  lords,  of  any  part  of  the  lands,  tenements,  or.heredita- 
"  ments,  for  which  such  ejectment  was  brought,  shall  de- 
"  sire  to  appear  by  himself  or  themselves,  and  consent  to 
"  enter  into  the  like  rule  that,  by  the  course  of  the  court, 
"  the  tenant  in  possession,  in  case  he  or  she  had  appeared, 
"  ought  to  have  done  ;  then  the  court,  where  such  eject- 
"  ment  shall  be  brought,  shall  and  may  permit  such  land- 
"  lord  or  landlords  so  to  do,  and  order  a  stay  of  execution, 
"  upon  such  judgment  against  the  casual  ejector,  until  they 
"  shall  make  further  order  therein." 

By  the  12th  section  of  the  same  statute  it  is  also  enacted, 


(m)  Lill.  Pr.  Reg.  674.  (o)  Jnon.  12  Mod.  21 1 . 

'«)  Goodrightv.  Hart,  Straw.  830. 


228  OF  THK  APPEARANCE. 

"  That  every  tenant,  to  whom  any  declaration  in  ejectment 
"  shall  be  delivered,  shall  forthwith  give  notice  thereof  to  hi* 
"landlord,  bailiff,  or  receiver,  under  the  penalty  of  forfeit- 
"  ing  the  value  of  three  years  improved,  or  rack-rent,  of 
"  the  premises  eo  demised  or  holden,  in  the  possession  of 
"  such  tenant,  to  the  person  of  whom  he  holds,  to  be  re- 
"  covered  by  action  of  debt,  to  be  brought  in  any  of  His 
"  Majesty's  courts  of  record  at  Westminster,  or  in  the 
"  counties  palatine  of  Chester,  Lancaster,  or  Durham,  re- 
"  spectively,  or  in  the  courts  of  grand  sessions  in  Wales." 

With  respect  to  this  latter  section,  it  may  be  proper  at 
once  to  observe,  that  it  has  been  interpreted  to  extend  only 
to  those  cases  in  which  the  ejectments  are  inconsistent 
with  the  landlord's  title.  Thus,  a  tenant  of  a  mortgagor, 
who  does  not  give  him  notice  of  an  ejectment,  brought  by 
the  mortgagee  upon  the  forfeiture  of  the  mortgage,  is  not 
within  the  penalties  of  the  clause. (p) 

The  first  enactment  in  the  thirteenth  section  of  this 
statute,  namely,  that  landlords  may  be  made  defendants  by 
joining  with  the  tenants  in  possession,  is  decidedly  only  a 
legislative  sanction  of  the  previous  uniform  practice  of  the 
courts ;  and  it  is  also  said,  by  Wtimot,  J.,  in  the  case  of 
Fairclaim,  d.  Fowler,  v.  Shamtitle,(q)  that  landlords  were 
permitted,  before  this  statute,  to  defend  ejectments  with- 
out joining  the  tenants  in  possession.  There  is,  indeed,  but 
one  case  extant  in  which  the  contrary  doctrine  is  main- 
tained ;(r)  and  the  loose  notes  to  be  found  of  cases  previous 
to  that  decision,  certainly  favour  Mr.  J.  Wilmofs  opi- 
nion.(s)  It  is,  therefore,  probable,  particularly  since  the 

(p)  Buckley  v.  Buckley,  1  T.  R.        (r)  Goodriglit  v.  Hart,  Strau.  830. 
647.  (s)   Lamb  v.  Archer,  Comb.  308. 

(?)  Burr.  1801 .  Anon.  12  Mod.  21 1 . 


WHO  MAY  APPEAR.  229 

wase  above  alluded  to  happened  but  a  few  years  before  the 
statute  was  passed,  that  the  practice  was  not  clearly  settled 
until  the  time  of  that  decision,  and  that  the  statute  was 
enacted  in  consequence  of  the  inconvenience  resulting 
therefrom,  (t) 

By  the  words  of  the  statute,  the  courts  can  admit  land- 
fords  only  to  defend,  instead  of  tenants  in  possession  ;  and 
difficulties  have  frequently  arisen,  as  to  the  meaning  of  the 
word  landlord  in  the  act,  and  as  to  what  interest  in  the  dis- 
puted premises,  will  be  sufficient  to  entitle  a  person  claim- 
ing title  to  appear  and  defend  the  action. 

In  the  first  reported  case  upon  the  construction  of  this 
section,  it  was  holden,  that  it  was  not  every  person  claim- 
ing title,  who  could  be  admitted  to  defend  as  landlord,  but 
only  he,  who  had  been  in  some  degree  in  possession,  as  re- 
ceiving rent,  &c.  ;  and,  upon  this  principle,  the  court 
would  not  allow  a  devisee,  claiming  under  one  will  of  the 
testator,  to  defend  as  landlord  in  an  ejectment,  brought  by 
a  devisee  claiming  under  another  will  of  the  same  testa- 
tor.(u)  But  this  doctrine  was  afterwards  reprobated  by 
Lord  Mansfield,  in  a  case  where  the  principles  of  the  sec- 
tion were  fully  considered,  and  the  decisions,  anterior  to 
the  act,  investigated  and  explained. 

"  There  are,  (says  Lord  Mansfield,)  two  matters  to  be 
considered  :  First,  whether  the  term  '  landlord?  ought  not, 
as  to  this  purpose,  to  extend  to  every  person  whose  title  is 
connected  to,  and  consistent  with,  the  possession  of  the  oc- 
cupier, and  devested  or  disturbed  by  any  claim  adverse  to 


(t)  Fairclaim,  d.  Fowlfr,  v   $h*ni-        (v)  Pnr,  cl.  T.rnk,  v.  Doc,  Bam.  193. 
title,  Btirr.  1290.  1998 


230  OF  THE  APPEARANCE. 

tuch  possession,  as  in  the  case  of  remainders  or  reversions, 
expectant  upon  particular  estates ;  secondly,  whether  it 
does  not  extend,  as  between  two  persons  claiming  to  be. 
landlords  de  jure,  in  right  of  representation  to  a  landlord 
de  facto,  so  as  to  prevent  cither  from  recovering  by  collu- 
sion with  the  occupier,  without  a  fair  trial  with  the  other. 
Where  a  person  claims  in  opposition  to  the  title  of  the 
tenant  in  possession, (r)  he  can  in  no  light  be  considered  as 
landlord  ;  and  it  would  be  unjust  to  the  tenant,  to  make  him 
a  co-defendant :  their  defences  might  clash.  Whereas, 
when  there  is  a  privity  between  them,  their  defence  must 
be  upon  the  same  bottom^]  and  letting  in  the  person  be- 
hind, can  only  operate  to  prevent  treachery  and  collusion. 
It  is  no  answer,  "  that  any  person  affected  by  the  judgment 
may  bring  a  new  ejectment ;"  because  there  is  a  great 
difference  between  being  plaintiff,  or  defendant,  in  eject- 
ment.^) 

(v)   Driver,  d.   Oxendon,  v.  Law-  a  landlord  under  the  statute  11  Geo. 

rence,  W.  Blk.  1259.  II.  c.  19.  s.  13. 

(w)  Fairclaim,  d.  Fowler,  v.  Sham-  Lord  Kenyan,  C.  J.,  "  If  the  person 
title,  Burr.  1290.  1294.  The  princi-  requiriug  to  be  made  a  defendant  un- 
ples  laid  down  by  Lord  Kenyan,  C.  der  the  act  had  stood  in  the  situation 
J.,  in  the  case  of  Lovtlock,  d.  Norris,  of  immediate  heir  to  the  person  last 
v.  Dancaster,  (3  T.  R.  783.)  seem  to  seised,  or  had  been  in  the  relation  of 
support  the  doctrine  of  Lord  Mans-  remainderman,  under  the  same  title 
field,  above  mentioned  ;  although,  as  the  original  landlord,  I  am  of  opi- 
from  the  omission,  in  the  report  of  nion  that  he  might  have  been  permit- 
the  case,  of  the  facts  upon  which  Lord  ted  to  defend  as  a  landlord,  by  virtue 
Kenyan's  judgment  was  founded,  the  of  the  directions  of  the  statute;  but 
point  cannot  be  clearly  ascertained.  here  the  very  question  in  dispute  be- 
lt was  moved,  that  the  cestui  que  tween  the  adverse  party  and  himself 
trust  might  be  made  defendant  in  eject-  is,  whether  he  is  entitled  to  be  land- 
ment  instead  of  the  tenant,  and  ob-  lord  or  not ;  and,  therefore,  we  are  not 
jected  to  on  the  opposite  side,  be-  authorized  to  extend  the  provision  of 
Cause  he  had  never  been  in  posses-  the  statute  to  such  a  case  as  this." 
sion,  and  could  not  be  considered  as  The  rule  was  discharged. 

[4]  A  party  will  not  be  admitted  t»  defend,  unless  be  swear  there  is  a  pri: 


WHO   MAY  APPEAR.  281 

The  judgment  in  this  case  was  not,  indeed,  ultimately 
given  upon  these  points ;  but  the  principle  upon  which  the 
statute  is  to  be  interpreted,  seems  to  have  been  established 
by  it ;  and  we  may  now  consider,  that  the  word  landlord  is 
extended  to  all  persons  claiming  title,  consistent  with  the 
possession  of  the  occupier ;  and  that  it  is  not  necessary  they 
should  previously  have  exercised  any  act  of  ownership  over 
the  lands.  Thus,  the  courts  have  permitted  an  heir,  who 
had  never  been  in  possession,  to  defend  an  ejectment,  where 
the  father,  under  whom  he  claimed,  had  died  just  before, 
having  previously  obtained  the  same  rule.(x)  So  a  devisee 
in  trust,  not  having  been  in  possession,  was  permitted  to 
defend  an  ejectment,(#)  and  a  mortgagee  has  been  made 
defendant  with  the  mortgagor.(z) 

If  a  party  should  be  admitted  to  defend  as  landlord,  whose 


(x)  Doe,  A.    JJeblethwaite,  v.  Roe,  report  of  this  case,  whether  the  mort- 

oited  3  T.  R.  783.  gagee  had  previously  received    any 

(y)  Lovelock,  d.  Norris,  v.  Danccuter,  rent ;  but,  from  the  principles  above, 

4  T.  R.  122.  laid   down,    the   circumstances  seem 

(*)  Doe,  d.  TUynrd,  v.  Cooper,  8  T.  immaterial.     (Serf  vide  B.  N.  P.  95.) 
R.  645.     It  does  not  appear,  from  the 


vity  between  him  and  the  tenant  in  possession.  Jackson  v.  M'Evoy,  1  Caiues 
Rep.  151.  Jackson  v.  Stilrs,  10  Johns.  67 

A  person  may  be  admitted  to  defend  as  landlord,  between  whom  and  the 
defendant  a  privity  of  interest  exists,  although  he  does  not  receive  rents,  which 
is  not  the  true  test.  Coleman's  Cas.  Prac.  56. 

The  assignee  of  a  mortgage  may  lie  let  in  to  defend  as  landlord,  but  he 
must  stipulate  to  give  no  evidence  of  any  title  except  that  acquired  under  the 
mortgage.  Jackson  v.  Babcock,  17  Johns.  112 

Where  a  person  had  been  disi  barged  under  the  insolvent  act,  it  was  held 
that  he  had  no  further  right  in  the  premises,  and  could  not  be  let  in  to  defend 
as  landlord.  Jackton  v .  stilts,  1O  Johns  67,  '>!'. 

Where  landlord  is  admitted  to  defend,  plaintiff  can  only  recover  such  pre- 
mises as  he  proves  to  be  Lu  possession  of  the  ttuiuit.  Fenn  T.  Hood,  1  Bos.  & 
Pul.  673. 


vr  » 

232  OF  THE  APPEARANCE. 

title  is  inconsistent  with  the  possession  of  the  tenant,  the 
lessor  of  the  plaintiff  may  apply  to  the  court,  or  to  a  judge 
at  chambers,  and  have  the  rule  discharged  with  costs.(a) 
If,  however,  he  neglect  to  do  so,  and  the  party  continue 
upon  the  record  as  defendant,  such  pajrty  will  not  be  al- 
lowed to  set  up  such  inconsistent  title  as  a  defence  at  the 
trial.(6) 

The  Court  of  King's  Bench,  in  a  case  which  has  already 
been  frequently  cited,  exercised  a  singular  species  of  equi- 
table jurisdiction,  with  respect  to  the  admission  of  a  person 
claiming  title  to  defend  an  ejectment.  The  action  was 
brought  by  one,  claiming  as  the  heir  of  a  copyholder ;  and 
the  lord  of  the  manor,  claiming  by  escheat  pro  defectu  h<&- 
redis,  obtained  a  rule  to  show  cause  why  he  should  not  be 
admitted  defendant.  After  considerable  argument  as  to  the 
legality  of  the  lord's  claim  to  defend,  it  was  agreed  by  both 
parties,  at  the  recommendation  of  the  court,  that  the  then 
ejectment  should  be  discontinued,  and  a  fresh  one  brought 
in  the  lord's  name,  in  which  the  heir  should  be  admitted 
defendant ;  and  Lord  Mansfield,  C.  J.,  declared  afterwards, 
that  if  the  heir  had  refused  to  consent  to  this  arrangement, 
they  would  have  admitted  the  lord  to  defend,  and  that  if 
the  lord  had  refused  his  consent,  they  would  have  discharg- 
ed the  rule.(c) 

A  wife  has  been  permitted  to  defend  an  ejectment,  where 
the  title  of  the  plaintiff's  lessor  arose  from  a  pretended  in- 
termarriage with  her,  which  marriage  she  disputed.(J) 

(a)  Doe,  d.  Hnrwood,  v.  Lippen-        (c)  Fairclaim,  d.  Fowler,  v.  Shani- 

oott.—Coram    Wood,  B.    Trin.   Vac.  title,  Burr.  1290. 
1817.  MS.  (d)  Fenwick  r.  Gravenor,  7  Mod- 

(6)  Doe,  d.  Knight,  Y.  Lady  Smytke,  71. 
4M.&S.347. 


OF  THE  CONSENT  RULE.  233 

But  a  parson  claiming  a  right  to  enter,  and  perform  divine 
service,  has  been  held  not  to  have  a  sufiicient  title  to  be  ad- 
mitted defendant  ;(e)  and,  where  the  application  for  admis- 
sion appeared  only  a  device  to  put  off  the  trial,  the  Court 
refused  to  grant  a 


It  may  be  useful  to  observe,  that  it  is  not  necessary  for  the 
landlord  to  be  made  defendant,  in  order  to  make  his  title 
admissible  in  evidence  ;  but  that  he  may,  with  the  tenant's 
consent,  defend  the  ejectment  in  the  tenant's  name.  And 
where  a  suit  was  so  defended,  and  the  lessor  of  the  plain- 
tiff, having  knowledge  thereof,  obtained  from  the  tenants  a 
retraxit  of  the  plea,  and  a  cognovit  of  the  action,  the  Court 
directed  the  judgment  to  be  set  aside.  (g) 

Thus  far  as  to  who  may  appear  :  we  must  now  consider 
how  the  appearance  should  be  made,  and  herein  first  of  the 
Consent  Rule. 

The  form(/i)  and  purposes  of  the  consent  rule  have  al- 
ready been  cursorily  mentioned  ;(t)  but  they  must  now  be 
spoken  of  more  fully.  It  is  in  substance  as  follows  :  First, 
The  person  appearing  consents  to  be  made  defendant  in- 
stead of  the  casual  ejector.  Secondly,  To  appear  at  the 
suit  of  the  plaintiff;  and,  if  the  proceedings  are  by  bill,  to 
file  common  bail.  Thirdly,  To  receive  a  declaration  in 
ejectment,(^')  and  plead  not  guilty.  Fourthly,  At  the  trial 
of  the  issue  to  confess  lease,  entry,  and  ouster,  and  insist 


(e)   Martin  v.   Darit,  Stran.  914.  (/t)  Appendix,  No.  26. 

Vid.  con/.  Ilillingfworth  v.  Brnctter,  (i)  Ante,  13. 

Salk.  256.  (j)  The  declaration,  served  upon 

(/)  Fenwick's  case,  Salk.  207.  the  tenant  to  bring  him  into  court, 

(#)  Doe,  d.  Lofkr,  v.  Franklin,  1  is  the  only  declaration  now  delivered. 

Taunt.  P. 

30 


234  OF  THE  CONSENT  RULE. 

upon  title  only.  Fifthly,  That  if  at  the  trial  the  party  ap- 
pearing shall  not  confess  lease,  entry,  and  ouster,  wherebj 
the  plaintiff  shall  not  be  able  to  prosecute  his  suit,  such 
party  shall  pay  to  the  plaintiff  the  costs  of  the  non  pros,  and 
suffer  judgment  to  be  entered  against  the  casual  ejector. 
Sixthly,  That  if  a  verdict  shall  be  given  for  the  defendant, 
or  the  plaintiff  shall  not  prosecute  his  suit  for  any  other 
cause  than  the  non-confession  of  lease,  entry,  and  ouster, 
the  lessor  of  the  plaintiff  shall  pay  costs  to  the  defendant. 
Seventhly,  When  the  landlord  appears  alone,  that  the  plain- 
tiff shall  be  at  liberty  to  sign  judgment  immediately  against 
the  casual  ejector,  but  that  execution  be  stayed  until  the 
Court  shall  further  order.(A;) 

A  trifling  variation,  with  respect  to  the  manner  of  de- 
scribing the  premises,  exists  in  form  between  the  consent 
rule  of  the  Court  of  King's  Bench,  and  of  the  Court  of 
Common  Pleas.  The  defendant,  in  the  former  court,  con- 
senting to  confess  lease,  entry,  and  ouster,  generally  of  all 
the  premises  mentioned  in  the  declaration  ;  but,  in  the  lat- 
ter, of  so  much  of  them  only  as  are  in  his  own,  or  his  under- 
tenant's possession.  The  consent  rules  are,  however,  now 
considered  as  essentially  the  same  in  both  courts  ;  and  it  is 
in  all  cases  necessary  for  the  plaintiff's  lessor  to  give  evi- 
dence at  the  trial,  of  the  possession  of  the  defendant,  or  his 
under-tenants,  of  the  premises  in  dispute,  at  the  time  of  the 
commencement  of  the  action. (/) 

Formerly  the  consent  rule  was  drawn  up  in  both  courts, 
according  to  the  present  practice  in  the  Common  Pleas,  or 
it  specially  described  the  premises  defended,  at  the  discre-  • 


(7;)Sel.  N.  P.  644.  (/)   Goodright,  d.   Baltk,  T.  Rich, 

"    7  T.  It.  327. 


OF  THE  CONSENT  RULE.  235 

lion  of  the  defendant.  Evidence  of  the  possession  of  the 
tenant  was  then  held  necessary  in  the  former  case,  but  not 
in  the  latter;  and  so  different  were  the  principles  upon  which 
the  courts  then  acted  in  regard  to  this  action,  from  those 
by  which  they  are  now  governed,  that,  by  a  rule  of  the  court 
of  King's  Bench,  in  the  time  of  Charles  II.,(m)  the  defend- 
ant, in  case  the  consent  rule  were  drawn  up  generally,  was 
obliged  to  give  to  the  lessor  of  the  plaintiff  notice  in  writing 
of  the  particular  premises  for  which  he  meant  to  defend,  in 
order  to  release  the  lessor  from  the  proof  of  the  defendant's 
possession.  This  practice  was,  indeed,  soon  discontinued, 
and  it  became  customary  in  lieu  thereof,  to  insert  in  the 
margin  of  the  consent  rule,  the  particular  premises  for  which 
the  defendant  appeared,  which  was  then  supposed  to  super- 
sede the  necessity  of  any  proof  of  possession  ;  but  this  mar- 
ginal insertion  has  also  now  degenerated  into  a  mere  form, 
and  since  the  cases  of  Goodright,  d.  Balsh,  v.  Rich,  in  the 
King's  Bench,(n)  and  Fenn,  d.  Blanchard,  v.  Wood,  in  the 
Common  Pleas,(o)  by  which  cases  it  has  been  decided  in 
both  courts  upon  principles  the  most  correct,  that  evidence 
must  in  all  cases  be  given  of  the  possession  of  the  defend- 
ant, or  such  of  his  under-tenants  as  have  declarations  in 
ejectment  served  upon  them,  the  distinctions  between  ap- 
pearing for  part,  or  appearing  for  the  whole,  or  generally, 
or  specially,  describing  the  premises  in  the  consent  rule, 
no  longer  prevail. 

The  general  consent  rule  will,  in  all  cases,  be  sufficient 
to  prevent  a  nonsuit  for  want  of  a  real  lease,  entry,  and 
ouster,  except  when  it  is  necessary  that  an  actual  entry(p) 
ahould  be  made  upon  the  land  previously  to  the  commence- 


(m)  Trio.  Term,  16  CM.  II.  (o)  1  B.  k  P.  573. 

(n)  7  T.  R.  327.  (p)  Ante,  chap.  4. 


236  OF  CONSOLIDATING  ACTIONS. 

ment  of  the  suit.  When,  therefore  an  ejectment  is  brought 
by  a  joint  tenant,  parcener,  or  tenant  in  common,  against 
his  companion,  (to  support  which  an  actual  ouster(q")  is  ne- 
cessary,) the  defendant  ought  to  apply  to  the  court  upon 
affidavit,(r)  for  leave  to  enter  into  a  special  rule,  requiring 
him  to  confess  lease  and  entry  at  the  trial,  but  not  ouster 
also,  unless  an  actual  ouster  of  the  plaintiff's  lessor  by  him, 
the  defendant,  should  be  proved  ;[5]  and  this  special  rule 
will  always  be  granted,(s)  unless  it  appear  that  the  claimant 
has  been  actually  obstructed  in  his  occupation. (/) 

As  the  consent  rule  contains  conditions  to  be  observed 
on  the  part  of  the  claimant,  as  well  as  of  the  tenant,  the 
clarimant  is  obliged  to  join  in  it :  and  an  attachment  will  lie 
against  either  party  for  disobedience  of  this,  as  of  every 
other  rule  of  court. 

It  may  here  be  observed,  that  when  several  tenants  are 
in  possession,  to  whom  the  claimant  delivers  declarations 
for  different  premises,  the  Court  will  not  join  them  in  one 
action,  on  the  motion  of  either  party,  although  the  claim- 
ant has  but  one  title  to  all  the  lands  ;  for,  if  the  motion  be 
made  on  the  part  of  the  plaintiff,  the  Court  will  object,  that 
each  defendant  must  have  a  remedy  for  his  costs,  which  he 
could  not  have  if  all  were  joined  in  one  declaration,  and 
the  plaintiff  prevailed  only  against  one  of  them ;  and  if  it 
be  made  on  the  part  of  the  defendants,  that  the  lessor  might 


(q)  Ante,  56.  (/)  Jtoion.   7  Mod.  39.      Oatu,  d. 

(r)  Appendix,  No.  26.  Wig/all,  v.  Brydon,  Burr.  1996 — Doe, 

($)  Appendix,  No.  27,  28.  d.  Ginger,  v.  Roe,  2  Taunt  397. 


[5]  A  defendant  claiming  as  tenant  in  common,  must  enter  into  this  spe. 
cial  consent  rule,  otherwise  he  cannot  allege  no  actual  ouster  as  a  defence. 
Jackton  v.  Denniston,  4  Johns.  312. 


OF  CONSOLIDATING  ACTION.  237 

have  sued  them  at  different  times,  and  it  would  be  obliging 
him  to  go  on  against  all,  when  perhaps  he  might  be  ready 
against  some  of  them  only.(w)  But  where  several  eject- 
ments are  brought  for  the  same  premises,  upon  the  same  de- 
mise, the  Court,  on  motion,  or  a  judge  at  his  chambers,  will 
order  them  to  be  consolidated  ;(z>)  and  although,  where  the 
premises  are  different,  the  Court  will  not  consolidate  the 
actions,  yet,  in  a  modern  case,  where,  on  a  rule  to  show 
cause  why  the  proceedings  in  all  the  causes  (which  were 
thirty-seven  in  number,  and  brought  against  the  several  in- 
habitants of  the  houses  in  Sackville-street)  should  not  be 
stayed,  and  abide  the  event  of  a  special  verdict  in  one  of 
them,  as  they  all  depended  upon  the  same  title,  Lord  Ken- 
yon,  C.  J.  said,  it  was  a  scandalous  proceeding  on  the  part 
of  the  claimant;  and  the  rule  was  made  absolute.  (TO) 

When  the  tenant  intends  to  apply  to  be  made  defendant, 
his  attorney  must  procure  a  blank  form  of  a  consent  rule, 
and  entitle  it  in  the  margin  with  the  names  of  the  plaintiff 
and  casual  ejector,  inserting  also  therein,  the  premises  as 
described  in  the  declaration,  or  such  part  of  them  as  he 
would  wish  to  defend,  and  stating  in  the  body  the  consent 
of  both  parties,  that  the  tenant  be  made  defendant.  He 
must  then  sign  his  name  to  this  paper,  which  is  called  the 
agreement  for  the  consent  rule,(x)  and  leave  the  same  at 
one  of  the  judge's  chambers,  when  the  proceedings  are  in 
the  King's  Bench,  or  with  the  prothonotary  when  in  fhe 
Common  Pleas,  (where  it  will  also  receive  the  signature  of 
the  attorney  of  the  lessor  of  the  plaintiff,)  together  with  a 
plea  of  the  general  issue.  Common'  bail  is  then  entered 

(u)  Medlifotv.Brewtlery2Keb.524.    Burghen,  Barn.  176.    Hoe,  d.  Burl- 
Smith  v.  Crabb,  Stran.  1149.  ton,  v.  Roe,  1  T.  R.  477. 
(p)  Grinulone,  d.  Lord  Bowers,  v.        (w)  2  Sell.  Prac.  144. 

(x)  Appendix,  No.  24. 


238  OF  THE  APPEARANCE. 

for  the  tenant,  if  the  proceedings  are  by  bill,  or  the  usual 
appearance,  if  by  original ;  and  the  suit  proceeds  in  his 
name,  instead  of  that  of  the  casual  ejector.(^) 

When  the  landlord  and  tenant  appear  jointly,  or  the 
landlord  appears  alone,  the  same  forms  are  observed,  mu- 
tatis mutandis,  together  with  the  addition  of  counsel's  sig- 
nature to  a  motion  (which  is  motion  of  course,  and  must  be 
annexed  to  the  consent  rule)  to  admit  the  landlord  and  te- 
nant, or  landlord  only,  to  defend  :  accompanied  also,  when 
the  landlord  appears  alone,  with  an  affidavit  of  the  tenant's 
refusal  to  appear. (z) 

When  the  party  who  wishes  to  be  made  defendant  is  not 
the  tenant,  or  actual  landlord,  but  has  some  interest  to  sus- 
tain, the  Court  must  be  moved,  on  an  affidavit  of  the  facts, 
to  permit  him  to  defend  with  or  without  the  tenant,  as  the 
case  may  require. 

If  the  tenant  refuse  to  appear,  the  landlord  cannot  ap- 
pear in  his  name,  nor  appoint  an  attorney  to  do  so  for  him, 
and  an  irregular  appearance  of  this  sort  will  be  ordered  to 
be  withdrawn. (a) 

When  it  happens  that  the  lessor  of  the  plaintiff  claims 
lands  in  the  possession  of  different  persons,  and  one  of  the 
tenants  would  be  a  material  witness  for  the  others,  such 
tenant  should  suffer  judgment  to  go  by  default,  as  to  the 
part  in  his  possession ;  because,  if  he  appear,  and  be  made 
a  defendant,  he  becomes  a  party  to  the  suit,  and  conse- 


O)  2  Sell.  Prac.  102.  (a)  Roe,  d.  Cook,  v.  Doe,  Barn.  30. 

(a)  Hobson,  d.  Bigland,  v.  Dobson,     178. 
Bam.  179.    2  Sell.  Prac.  102.— Ap- 
pendix, No.  29. 


HOW  TO  APPEAR.  239 

quently  cannot  be  a  witness  therein  ;  and  it  seems,  that  if 
he  appear  and  plead,  the  Court  will  not  afterwards  strike 
out  his  name  upon  motion. (6) 

When  the  landlord  is  admitted  to  defend  without  the 
tenant,  judgment  must  be  signed  against  the  casual  ejector, 
according  to  the  conditions  of  the  consent  rule.  The  rea- 
son for  this  practice  is,  to  enable  the  claimant  to  obtain 
possession  of  the  premises,  in  case  the  verdict  be  in  his 
favour;  because,  as  the  landlord  is  not  in  possession,  no 
writ  of  possession  could  issue  upon  a  judgment  against 
him. 

The  motion  to  admit  the  landlord  to  be  defendant,  in- 
stead of  the  tenant,  ought  regularly  to  be  made  before 
judgment  is  signed  against  the  casual  ejector,  by  the  oppo- 
site party ;  and  if  it  be  delayed  until  after  that  time,  the 
Court  will  grant  the  motion  or  not,  at  their  discretion.(c)[6] 
Thus,  where  a  judgment  against  the  casual  ejector  was 
signed,  and  a  writ  of  possession  executed  thereon,  and  it 
appeared,  upon  motion,  that  the  landlord's  delay  in  his  ap- 
plication arose  from  the  tenant's  negligence,  in  not  giving 
him  due  notice  of  the  service  of  the  declaration,  according 
to  the  provisions  of  statute  11  Geo.  II.  c.  19.  s.  12.,  the 
Court  ordered  the  judgment  and  execution  to  be  set  aside, 
compelled  the  tenant  to  pay  all  the  costs,  and  permitted 
the  landlord  to  be  made  defendant  on  the  usual  terms  ; 
notwithstanding  it  was  strongly  argued  by  the  opposite 

(6)  B.  N.  P.  98.  (c)  Dobbt  v.  Passer,  Strao.  975. 


[6]  After  judgment  by  default  against  the  casual  ejector,  the  Jandlord  may 
be  let  in  to  defend.  Jackson  r.  Stile*,  4  Johns.  493. 

In  such  case,  the  judgment  against  the  casual  ejector  remains,  with  stay  of 
execution,  till  the  further  order  of  the  court.  Ibid.  4V5.  1  Her.  Laws,  443,  444. 


240  OF  THE  APPEARANCE. 

party,  that  the  judgment  was  perfectly  regular,  and  that 
the  tenant's  negligence  was  entirely  a  matter  between  him 
and  his  landlord,  for  which  the  statute  had  given  the  land- 
lord ample  compensation.(J)  But  in  a  recent  case,  the 
Court  of  Common  Pleas,  after  a  recovery  in  an  undefended 
ejectment,  without  collusion,  and  after  the  lessor  of  the 
plaintiff  had  contracted  for  the  sale  of  part  of  the  premises, 
and  let  the  purchaser  into  possession  refused  to  set  aside 
the  judgment,  and  writ  of  possession  upon  an  application  of 
this  nature,  and  assigned  as  their  reason,  that  the  conceal- 
ment of  the  delivery  of  the  declaration  was  a  matter  be- 
tween the  tenant  and  his  landlord,  with  which  the  plaintiff's 
lessor  had  no  concern. (e)  And,  in  another  case,  where  the 
landlord  applied  to  be  made  defendant,  after  judgment 
had  been  signed,  but  before  execution,  and  the  claimant 
offered  to  waive  his  judgment,  if  the  landlord,  who  re- 
sided in  Jamaica,  would  give  security  for  the  costs, 'to 
which  offer  the  landlord's  counsel  would  not  accede,  the 
Court  refused  the  application,  and  permitted  the  plaintiff's 
lessor  to  take  out  execution. (/) 

The  appearance  should,  in  all  cases,  be  entered  of  the 
term  mentioned  in  the  notice,  unless  it  be  a  country  cause, 
and  the  notice  be  to  appear  in  a  non-issnable  term,  and 
then  the  appearance  must  be  of  the  next  issuable  term  ; 
and  where  the  notice  was  to  appear  in  Hilary  term,  and  the 
tenant  entered  an  appearance  in  Michaelmas  term,  and  did 
nothing  farther,  and  the  plaintiff's  lessor,  finding  no  ap- 
pearance of  Hilary  term,  signed  judgment  against  the 
casual  ejector,  the  Court  held  the  judgment  regular,  but 

(rf)    Doe,  d.    Troughton,  v.    Roe,        (/)  Roe,  d.  Hyde,  v.  Doe,  Barn 
Burr.  1996  186. 

(e)  Goodtitlt  v.  Badtitie,  4  Taunt, 
•fc 


OP  THE  APPEARANCE.  241 

afterwards  set  it  aside  upon  payment  of  costs,  to  try  the 
merits.(g) 

The  party,  intending  to  defend  the  action,  having  ap- 
peared according  to  the  forms  above  mentioned,  the  les- 
sor's duty  in  consequence  thereof,  must  be  our  next  con- 
sideration. 

When  the  time  for  appearance  has  expired,  the  lessor's 
attorney  must  search  at  the  proper  offices  for  the  agree- 
ment before  mentioned  on  the  part  of  the  defendant,  to 
enter  into  the  consent  rule  ;  and,  having  signed  his  name 
on  it,  above  that  of  the  defendant's  attorney,  and  also  (when 
the  proceedings  are  in  the  King's  Bench)  obtained  the 
signature  of  the  judge,  at  whose  chambers  the  agreement 
was  left,  he  must  take  it  to  the  clerk  of  the  rules,  or  secon- 
dary, who  will  file  it,  and  draw  up  the  consent  rule  there- 
upon :(h)  which  consent  rule  is,  in  truth,  a  copy  of  the 
agreement,  prefixing  only  the  date  of  drawing  it  up,  omit- 
ting the  premises  in  the  margin,  and  adding  "  by  the  Court," 
instead  of  the  attornies'  names,  at  the  end. 

The  plea  of  the  general  issue,  we  have  before  observed, 
is  generally  left  by  the  defendant  with  the  agreement  for 
the  consent  rule  £7]  and,  when  this  is  the  case,  as  soon  as 
the  consent  rule  is  drawn  out,  the  issue  is  at  once  made  up, 
with  a  copy  of  the  rule  annexed,  and  delivered  to  the  de- 
fendant's attorney,  with  notice  of  trial  as  in  other  actions. 


(g)  Mason,  A.  Kendall,  v.  Hodgson,        (A)  Appendix,  No.  25. 
Barn.  250. 


[7]  The  delivering  a  new  declaration,  putting  in  common  bail,  and  filing  a 
plea,  are  acts  simultaneous  with  the  entering  into  the  consent  rule.  Jackson 
v.  Woodward,  2  Johns.  Gas.  110. 

31 


242  OF  THE  PLEA. 

But  if  the  plea  be  not  left  with  the  consent  rule,(t)  the 
plaintiff  must  give  a  rule  to  plead,  and  then  judgment  may 
be  entered  for  want  of  a  plea,  as  in  other  actions  without  a 
special  motion  in  court  for  the  purpose.^'^S] 

OF  THE  PLEA,  AND  ISSUE. 

The  general  issue  in  this  action  is,  not  guilty  ;(k)  and  it 
seldom  happens,  by  reason  of  the  consent  rule,  that  the 
defendant  can  plead  any  other  plea.  It  is  not,  indeed, 
easy  to  imagine  a  case  in  which  any  other  plea  in  bar  can 
be  necessary ;  for  as  the  claimant  must,  in  the  first  instance, 
prove  his  right  to  the  possession,  whatever  operates  as  a 
bar  to  that  right,  as  a  fine  with  non-claim,  the  statute  of  li- 
mitations, a  descent  cast,  &c.  must  cause  him  to  fail  in 
proving  his  possessory  title,  and  consequently  entitle  the 
defendant  to  a  verdict  upon  the  general  issue. (/)  As,  how- 
ever, the  consent  rule  was  introduced  for  the  purposes  of 


(£)  Where  the  plea  was  entitled  (j)  Reg.  Hil  1649,  and  Trin.  18 
with  the  true  na.ne  of  the  cause,  but,  Car.  II.  B.  R. 
by  mistake  in  the  body  of  the  plea,  (&)  Appendix,  No.  30. 
the  name  of  the  lessor  was  inserted  (/)  In  the  time  of  Lord  Coke,  (Pey- 
as  the  person  complaining,  instead  of  toe's  case,  9  Co  77.,)  an  accord  with 
that  of  the  plaintiff,  and  the  lessor's  satisfaction  was  held  to  be  a  good 
attorney,  looking  upon  this  plea  as  plea  in  ejectment,  "  because  an  eject- 
null  and  void,  signed  judgment  against  ment  is  an  action  of  trespass  in  its 
the  casual  ejector ;  the  judgment  was  nature,  and  in  trespass  accord  is  a 
set  aside,  with  costs,  as  irregular,  for  good  plea  ;"  but  as  this  plea  is  quite 
the  plea  was  properly  entitled,  and  inapplicable  to  the  modern  uses  of  the 
not  a  nullity.  Goodlitle  v.  Badtitle,  action,  the  Court,  it  is  conceived, 
Barn.  191.  would  not  at  this  time  allow  a  defen- 
dant to  plead  it. 


[8]  And  where  tenant  had  entered  into  consent  rule,  but  does  not  file  hit 
plea,  he  is  considered  as  not  having  appeared,  and  default  must  be  taken 
against  casual  ejector.  Jackson  v.  Vitcher,  2  Johns.  Cas.  106.  Jackson  r. 
Woodward,  2  Johns.  Cas.  110. 


OF  THE  PLEA.  243 

justice,  the  courts  would  undoubtedly  permit  the  defendant 
to  plead  specially,  if  the  particular  circumstances  of  the 
case  should  require  it.(m) 

A  plea  to  the  jurisdiction  may  be  pleaded  in  ejectment 
by  permission  of  the  Court,  but  not  otherwise.  This  per- 
mission is  necessary,  because  a  plea  to  the  jurisdiction  is  a 
plea  in  abatement,  and  must,  therefore,  be  pleaded  within 
the  four  first  days  of  the  term  next  ensuing  that  of  which 
the  declaration  is  entitled,  at  which  time  the  casual  ejector, 
and  not  the  tenant,  is  defendant.  To  obtain  leave  to  plead 
such  plea,  the  Court  must  be  moved  upon  affidavit  before 
the  expiration  of  the  four  first  days  of  term,  the  plea  itself 
being  first  filed;  and  the  motion  should  be  for  a  rule  to 
show  cause  why  the  defendant  should  not  be  permitted  to 
plead  the  facts  stated  in  the  affidavit,  and  why  the  plea  then 
filed  to  that  effect  should  not  be  allowed.  The  latter  part 
of  the  rule,  and  the  filing  of  the  plea,  are  necessary  parts 
of  the  application  ;  because  the  four  days  would,  in  all  pro- 
bability, expire  before  cause  could  be  shown  and  the  plea 
pleaded,  unless  such  plea  were  pleaded  be  bene  esse  in  the 
first  instance. (n) 

Such,  at  least,  has  been  the  mode  of  proceeding  in  the 
only  two  reported  cases  upon  the  subject,  which  can  be 
cited  as  authorities.  But  a  practical  difficulty  occurs,  for 
which  these  cases  seem  not  to  provide.  At  the  time  when 
the  application  for  leave  to  plead  to  the  jurisdiction  is  made, 
the  tenant  has  not  appeared,  and  the  proceedings  are  against 
the  casual  ejector.  By  whom  then  should  the  plea  be  plead- 
ed, and  how  is  the  tenant  to  appear  ?  The  most  simple 


Cm)  Philip*  r.  Bttry,  Carth.  180.        W.  BIk.  197.    Doe,  d.  Morion,  r.  Roe, 
(n)    H'illiamt,  cL  Johtuvn,  v.  Keen,     10  East,  523. 


244  OF  THE  PLEA. 

method  of  avoiding  these  difficulties  is  for  the  tenant,  iu 
the  first  instance,  to  file  the  plea  in  his  own  name,  and  then 
move  for  a  rule  to  show  cause  "  why  he  should  not  be  forth- 
with admitted  defendant  upon  the  usual  terms,  except  as 
far  as  relates  to  pleading  the  general  issue,  and  why  he 
should  not  be  permitted  to  plead  the  facts  stated  in  the  af- 
fidavit, upon  which  he  moves,  in  lieu  thereof,  and  why  the 
plea  already  filed  by  him  to  that  effect  should  not  be  al- 
lowed." 

Ancient  demesne  is  a  good  plea  in  ejectment  ;(o)  but  it 
is  a  plea  much  discouraged,  and  the  person  pleading  it  must 
carefully  observe  every  form  which  the  Court  deems  neces- 
sary. As  it  is  a  plea  in  abatement,  application  for  leave  to 
plead  it  must,  as  has  already  been  stated,  be  made  within 
the  four  first  days  of  term ;  and  the  application  must  be  ac- 
companied by  an  affidavit,  that  the  lands  are  holden  of  a 
manor  which  is  ancient  demesne,  that  there  is  a  Court  of 
ancient  demesne  regularly  holden,  and  that  the  claimant 
has  a  freehold  interest ;  and  the  court  will  refuse  the  mo- 
tion if  any  of  these  facts  be  omitted  in  the  affidavit.(/?) 

Ancient  demesne  cannot  of  course  be  pleaded  where  the 
ejectment  is  brought  for  copyhold  lands  ;(</)  but  if  the  affi- 
davit state  that  the  lands  are  ancient  demesne,  the  court 
will  not  reject  the  plea  upon  a  counter  affidavit  that  great 
part  of  the  lands  are  copyhold,  but  will  leave  the  plaintiff 
to  state  such  matter  in  his  reply.(r) 

When  the  party  appearing  has  entered  into  the  consent 


(e)  Appendix,  No.  31,32.  (q)   Brittle  r.  Dade,  Salk.  185.  S. 

(p)  Doe,  d.  Rust,  v.  Roe,  Burr.  1046.     C.  Ld.  Raym.  43. 
Derm,  d.  Wroot,  v.  Fcnn,  S  T.  R.  474.        (r)  Doe,  d.  Morion,  v.  Roe,  10  East, 

523. 


OF  THE  ISSUE.  246 

rule  and  pleaded,  he  may  move  for  a  rule  to  reply,  before 
the  plaintiff's  lessor  has  joined  in  the  consent  rule,  and  the 
plaintiff  may  be  non-prossed  thereby  ;  but  as  the  plaintiff  is 
only  a  fictitious  person,  the  defendant  will  not  be  entitled 
to  costs.(s)[9] 

The  issue  must  agree  with  the  declaration  against  the  ca- 
sual ejector  in  all  respects,  except  in  the  defendant's  name, 
unless  an  order  for  the  alteration  be  obtained  ;  and  if  there 
be  a  difference  between  the  issue  and  the  declaration,  the 
Court  on  motion  will  set  it  right.(f) 

If  the  party  interested  appear  and  plead,  and  after  hav- 
ing pleaded  withdraw  his  plea,  the  judgment  must  be  en- 
tered against  the  party  so  appearing. 

The  record  and  issue  are  made  up  with  memorandums, 
if  the  proceedings  are  by  bill ;  and  without  any  memoran- 
dum, if  by  original,  as  in  other  actions :  the  time  allowed 
for  notice  of  trial  is  also  the  same. 

A  plea  puts  darrien  continuance  it  seems  may  be  pleaded 
to  this  action  ;  but  where  the  plea  was,  that  after  issue  join- 
ed, one  of  the  lessors  of  the  plaintiff  had  released  to  the  de- 


(*)  Goodright,  d.  Ward,  v.  Badtitle,        (<)  Baa  v.  Bradford,  Ld.   Raym. 
W.Blk.  763.  1411. 


[9]  The  death  of  a  lessor  in  ejectment  does  not  abate  the  suit,  and  so  Tar 
lias  this  doctrine  been  carried,  that  even  where  lessor  was  tenant  for  life,  his 
death  was  not  permitted  to  abate  the  suit,  which,  it  was  held,  might  still  be 
prosecuted  to  enable  the  plaintiff  to  recover  the  mesne  profits  and  his  costs, 
but  with  a  perpetual  stay  of  the  writ  of  possession.  Jackson  v.  Davenport,  18 
Johns  295.  frier  v.  Jack  ton,  8  Johns.  607. 

But  in  such  cases  Court  will  oblige  the  plaintiff  to  find  security  for  costs.  2 
Str.  1U56.  1  Bac.  Abr.  18.  Jenk.293.  pi.  88. 


OF  THE  ISSUE. 

fendant,  the  Court  held  the  plea  insufficient,  and  said  the 
release  ought  to  have  been  by  the  nominal  plaintiff;  be- 
cause, although  in  every  other  respect  the  Court  would 
look  upon  the  lessor  as  the  interested  person,  as  far  as  the 
record  was  concerned  they  must  consider  the  nominal  plain- 
tiff as  the  real  party. (w)[l][2]  A  release  by  the  nominal 
plaintiff  so  pleaded,  would  certainly,  when  the  old  practice 
prevailed,  have  been  a  good  defence  to  the  action ;  but 
even  then  the  Courts  held  such  a  release  to  be  a  contempt,(r) 
and  it  is  very  doubtful  whether  a  judge  would  receive  the 
plea  at  the  present  day. 

When  the  ancient  practice  prevailed,  if  the  plaintiff  in 
ejectment  after  issue  joined,  and  before  the  trial,  entered 
into  any  part  of  the  premises,  the  defendant  at  the  assizes 
might  plead  such  entry  as  a  plea  puis  darrien  continuance. 
But  this  plea  cannot  now  be  ever  necessary  ;  for  the  plain- 
tiff, being  a  fictitious  person,  cannot  enter  upon  the  land ; 
and  if  the  lessor  of  the  plaintiff  should  enter,  he  would  be 
unable  at  the  trial  to  prove  the  possession  of  the  defendant, 

and  must  consequently  fail  in  his  ejectment.(w) 

• 

(u)  Doe,  d.  Byne,  v.  Brewer,  4  M.        (v)  Ante,  181. 
&,  S.  300.  (w)  Moore  v.  Hawkint,  Yelv.  180. 


[1]  The  plaintiff  in  ejectment  cannot  recover  under  a  demise  from  a  lessor 
who  has  released  his  interest  to  the  defendant,  but  is  stopped  by  such  release 
to  claim  any  title.  Jackton  v.  Foster,  12  Johns.  488.  Jackwn  v.  Wheeler,  10 
Johns.  164. 

[2]  In  ejectment,  where  matter  of  defence  arose  after  issue  joined,  it  was 
determined  that  it  must  be  taken  advantage  of  by  a  plea,  puis  darrien  conti- 
nuance. Jackson  v.  Rich,  7  Johns.  195. 

As  where  defendant,  since  issue  joined,  surrendered  the  premises  to  the 
lessor.  Ihid. 

Accord  and  satisfaction  is  a  good  plea  in  ejectment,  for  ejectment  supposes 
a  trespass,  and  they  are  so  interwoven  that  they  cannot  b«  severed.  Peytoe't 
ease,  9  Co.  77  6. 


•247 


CHAPTER  X. 


OF  THE  EVIDENCE  IN  THE  ACTION  OF  EJECTMENT. 


—»•••*-- 


THE  facts  necessary  to  be  established  by  a  claimant  in 
«jectment,  when  his  title  to  the  premises  is  controverted, 
are  as  follows.  First,  he  must  prove  that  he  had  the  legal 
estate  in  the  disputed  lands  at  the  time  of  the  demise  laid 
in  the  declaration  ;  secondly,  that  such  legal  estate  was  ac- 
companied by  a  right  of  entry ;  and,  thirdly,  that  the  defend- 
ant, or  those  claiming  under  him,  were  in  possession  of  the 
premises  at  the  time  when  the  declaration  in  ejectment  was 
delivered.  When,  indeed,  there  is  a  privity  between  the 
parties,  as  if  the  relationship  of  landlord  and  tenant  has 
subsisted  between  them,  proof  of  title  will  be  unnecessary  ; 
for  a  party  will  not  be  allowed  to  dispute  the  original  right 
of  him  by  whom  he  has  been  admitted  into  possession, (,T) 
although  he  is  at  liberty  to  show  that  such  right  has  expir- 
ed.^) In  cases  of  this  nature,  therefore,  it  will  be  suffi- 
cient to  prove,  that  the  defendant,  or  those  under  whom  he 
claims,  (for  the  rule  extends  to  under-tenants,(r))  were  ad- 


(z)  Driver  v.  Laurence,  W.  Black.    4  T.  R.  682.    Vide  Baiter  v.  Mellith, 
1269.  10  Vez.  Jun  644. 

(y)  England,  d.  Sy&urn,  T.  Slade,        (c)    Rarunck,  d.  Mayor  of  Rich- 
mond, v.  Thompton,  1  T.  R.  486. 


248  OF  THE  EVIDENCE 

' 

4 

mitted  into  possession  of  the  premises  in  question,  by  the 
lessor  of  the  plaintiff,  and  that  their  right  to  the  possession 
has  ceased.  And  upon  the  same  principle,  if  the  defend- 
ant has  held  as  tenant  to  some  third  person  under  whom 
the  lessor  claims,  although  the  derivative  title  of  the  claim- 
ant from  such  third  person  must  be  proved  in  addition  to 
the  evidence  necessary  in  the  last  case,  proof  of  the  title  of 
the  third  person  himself  will  not  be  required. 

The  identity  of  the  lands,  and  the  possession  of  them 
liy  the  defendant,  can  always  be  proved  without  difficulty, 
when  a  privity  exists  between  the  parties,  by  the  fact  of 
payment  of  rent,  or  by  the  acknowledgment  of  the  defend- 
ant that  he  is  tenant,  &c.  When  there  is  no  privity,  the 
general  mode  of  proof  is  by  reading  the  deeds  or  wills  un- 
der which  the  lessor  claims,  and  showing  that  the  names 
and  abutments  of  lands  in  the  defendant's  possession,  agree 
with  the  premises  described  therein  ;  or  by  showing  that 
the  lands  in  dispute  were  formerly  in  possession  of  the  an- 
cestors, &c.  of  the  claimant ;  and  the  declarations  of  de- 
ceased tenants  may  be  received  in  evidence,  for  the  pur- 
pose of  proving  that  any  particular  lands  formed  part  of  the 
estate  they  occupied.(a)  Cases  in  which  it  is  extremely 
difficult  to  prove  identity  and  possession  will,  indeed,  some- 
times occur,  from  the  deficiency  of  the  description  in  the 
title  deeds,  the  length  of  time  during  which  the  claim  has 
lain  dormant,  or  other  causes  :  but  these  cases  all  depend 
upon  their  own  circumstances,  and  it  is  impossible  to  give 
any  general  directions  concerning  them. 

The  evidence  necessary  to  establish  the  other  parts  of 


(a)  Davit*  v.  Pierce,  2  T.  R.  63.    Et  vide  Ivat  v.  Finch,  I  Taunt.  141 
Outran  T.  Morewood,  5  T.  R.  131. 


BY  HEIRS.  249 

the  lessor's  case  will  of  course  vary  according  to  the  nature 
of  his  claim.  We  shall,  therefore,  first  consider  the  several 
proofs  requisite  in  support  of  each  particular  title,  when  no 
privity  exists  between  the  parties:  arid, secondly,  the  proofs 
required  when  such  privity  does  exist.  [3] 


[3]  It  may  be  well  here  to  state  how  far  parol  declarations  have  been  de- 
t'-i  1 1 1 ITU ••!  to  be  admissible  in  ejectment.  The  declarations  or  confessions  of  a 
party,  when  against  himself,  may  be  given  in  evidence  in  ejectment,  as  to 
facts  which  rest  in  parol,  and  are  dehors  the  title  itself;  or  facts  relating  to 
the  time  or  manner  of  holding  possession,  the  boundaries  or  location  of  the 
premises  in  question,  the  delivery  or  loss  of  a  deed,  or  that  the  same  had  been 
ante-dated.  In  the  case  of  Waring  v.  Warren,  1  Johns.  343.  it  was  determined, 
that  the  declarations  of  a  party  holding  adversely  could  not  be  given  in  evi- 
dence to  support  his  own  possession,  though  they  might  be  received  when 
against  it.  And  in  Jackson  v.  Bard,  4  John*.  230.  evidence  of  the  declarations 
of  a  party  in  possession  was  held  admissible  against  him,  and  all  claiming 
under  him,  which  declarations  related  principally  to  the  ante-dating  of  a  deed. 
And  in  Jackson  v.  M'Calt,  10  Johns.  377.  parol  confessions  of  a  person  in  pos- 
session, as  to  the  true  boundary  line,  were  h'eld  admissible. 

But  the  acknowledgments  or  confessions  of  a  party,  relating  to  the  title  it- 
self, are  inadmissible  In  the  case  of  Jackson  v.  Sherman,  6  Johns.  19,  21. 
it  is  said  by  the  Court,  that  "  the  acknowledgments  of  a  party  as  to  title  to 
real  estate,  are  a  dangerous  species  of  evidence,  and  though  good  to  sup- 
port a  tenancy,  or  to  satisfy  doubts  in  cases  of  possession,  they  ought  not 
to  be  received  as  evidence  of  title.  This  would  be  to  counteract  the  benefi- 
cial purposes  of  the  statute  of  frauds."  And  in  the  case  of  Jackson  v.  Gary,  16 
Johns.  302,  306.  Spencer,  J  says,  "  Although  parol  declarations  of  a  tenancy 
have  been  received  with  certain  qualifications,  parol  declarations  of  a  person 
having  title  to  lands  are  inadmissible  to  defeat  the  title,  it  being  contrary  to 
the  statute  of  frauds  and  perjuries,  which  is  the  magna  charta  of  real  proper- 
ty." And,  on  the  same  principle,  parol  evidence  of  a  disclaimer  of  title  to 
real  property  is  inadmissible.  Jackson  v.  Vosburgh,  7  Johns.  1B6.  Jackson  v. 
Kisselbfach,  10  Johns.  338.  4  Cruise's  Dig.  367.  Sranl  v.  Liverwort',  10 
Johns.  358. 

So,  it  has  been  ruled  by  the  Supreme  Court  of  Pennsylvania,  in  Ltssee  of 
Watson  v  Bailey,  (1  Binucy's  Pcnn.  Rep.  470.)  that  parol  declarations  of  the 
wife  cannot  be  received  to  supply  a  defective  acknowledgment. 

And  in  Massachusetts  it  was  held,  that  the  declarations  of  one  of  several 
devisees,  that  a  testator  was  not  of  sound  mind,  were  inadmissible  to  show  his 
insanity.  I'hflpsv.  Ilurtictll,  1  Mass.  Rep.  71.  The  declarations  of  a  grantee 
cannot  be  admitted  to  show  that  the  land  included  in  a  conveyance,  was  a«t 
tio  intended  by  the  parties.  Paine  v.  M'lntire,  1  Mais.  Rep.  6V. 

32 


250  OF  THE  EVIDENCE 

Before,  however,  we  proceed  in  this  inquiry,  it  will  be 
useful  to  give  a  short  account  of  the  decisions  respecting 
the  competency  of  parties,  haying  an  interest  in  the  lands, 
to  give  testimony  concerning  them. 

The  tenant  in  possession  is  not  a  competent  witness  to 
support  his  landlord's  title,  inasmuch  as  he  is  interested  in 
the  event  of  the  suit  ;[4]  for  if  the  verdict  be  against  his 
landlord  he  is  liable  for  the  mesne  profits,  and  may  also  be 
turned  out  of  possession  :(i)  nor  is  his  evidence  admissible 
to  prove  that  he,  and  not  the  defendant,  is  really  the  te- 
nant ;[5]  for  a  verdict  against  such  defendant  would  have 
the  effect  of  ejecting  him  (the  witness)  from  the  lands, 
which  is  an  immediate  interest,  and  outweighs  the  contrary 
and  remoter  effect  of  subjecting  himself,  by  his  testimony, 
to  a  future  action. (c)[6]  Upon  the  principle  of  interest, 
also,  the  person  having  ttie  inheritance  of  the  lands  is  not 
an  admissible  witness,  where  two  persons,  both  of  whom 
admit  his  title,  are  contending  for  the  possession  under  dif- 
ferent grants  from  him,  (unless,  indeed,  they  claim  under 
grants  not  rendering  rent,)  for  he  is  interested,  inasmuch  as 

(b)   Doe,  d.  Forster,  v.    Williams,        (c)    Doe,  d.  Jones,   v.     Wilde,   6 
Cowp.  621.    Bourne  v.  Turner,  Stran.     Taunt.  183. 
632. 


[4]  A  lessor  of  the  plaintiff  cannot  be  a  witness  in  the  cause.  Jackson  v 
Ogden,  4  Johns.  140. 

[5]  The  same  point  is  decided  by  the  Supreme  Court  of  New- York,  in 
Brant  v.  Dyckman,  1  Johns.  Cas.  275.  and  in  Jackson  v.  Truesdell,  12  Johns. 
246. 

[6]  A  person  who  was  a  tenant  under  a  devisee,  of  part  of  the  estate  de- 
vised, was  held  to  be  a  competent  witness  in  an  action  of  ejectment  brought 
by  the  heir  against  a  tenant,  who  held  part  of  the  premises  under  the  testator 
or  devisee,  and  part  under  the  witness,  in  order  to  impeach  the  validity  of  the 
will  Jackson  v.  jRumsey,  3  Johns,  Cas.  234. 


'>(j  BY  HEIRS.  251 

he  may  prefer  one  tenant  to  another.(  J)[7]  In  like  manner, 
a  person  who  has  mortgaged  lands  cannot  be  an  evidence 

(d)  Fox  v.  Su>cmn,  Styl.  482.     Bell  v.  Harwood,  3  T.  R.  308. 


[7]  The  tenant  is  a  competent  witness  when  testifying  against  his  interest. 
Jackson  v.  Vredenbrugk,  1  Johns.  Rep.  157. 

A  feme  covert,  who  bad  executed  a  deed  with  her  husband,  is  a  competent 
witness  to  prove  that  the  deed  was  antedated  ;  for,  if  antedated,  an  acknow- 
ledgment made  by  her,  at  any  time,  would  bar  her  right  to  dower,  and  if  not 
acknowledged  her  signing  was  no  bar.  Jackson  v.  Bard,  4  Johns.  230. 

A  person  having  a  right  of  dower  in  the  premises  in  dispute,  is  a  competent 
witness,  for  the  recovery  in  ejectment  cannot  be  given  in  evidence  against  her. 
Jackson  v.  I'anduaen,  6  Johns.  144. 

The  declarations  of  a  party  to  an  instrument,  who  may  be  considered  as 
interested  at  the  time  to  declare  in  the  particular  manner  testified  to,  can  in 
no  case  be  admitted  as  evidence  for  any  purpose.  Clarke  v.  Haile,  12  Mass. 
Rep.  439. 

So  the  declarations  of  a  grantor  are  inadmissible,  even  after  the  death  of 
the  grantor,  and  all  the  subscribing  witnesses.  Bartlet  v.  Delprat,  4  Mass. 
Rep.  702. 

Evidence  of  the  declarations  of  one  who  has  given  a  deed  with  warranty, 
cannot  be  received  to  support  a  title  deduced  from  such  person,  for  the  testi- 
mony of  the  person  himself  to  that  point  would  be  inadmissible,  but  the  de- 
clarations may  be  received  to  show  in  what  character  such  person  entered. 
Jackson  v.  Vredenbrugh,  1  Johns.  159. 

A.  gave  a  deed  with  warranty  to  B.,  and  afterwards,  by  another  deed  with 
warranty,  conveyed  land  adjoining  to  C.  In  an  action  in  which  the  question 
was,  whether  the  bounds  of  the  land  granted  to  B.  did  not  extend  go  as  to  in- 
clude the  premises  granted  to  C.  A.  was  held  not  a  competent  witness  as  to 
the  boundaries,  for  he  is  interested  to  support  C.'s  title.  Jacksonv.Hallenbach, 
3  Johns.  394. 

But  had  he  been  equally  liable  to  either,  in  case  cither  had  recovered,  then 
he  would  have  been  competent.  Ilderton  v.  Atkinson,  7  T.  R.  480. 

Where  A.  conveys  to  B.  with  warranty,  and  B.  conveys  to  C.  with  warranty, 
A.  is  a  good  witness  for  C.  on  being  released  by  C.,  for  the  release  prevents 
C.  from  resorting  either  to  A.  or  B.  Jackton  v.  Root,  18  Johns.  60. 

A  grantor  in  a  deed  which  is  impeached  as  fraudulent,  on  being  released 
by  the  grantee,  is  competent  to  prove,  as  well  as  to  disprove,  the  fraud,  the 
objection  going  only  to  his  credit.  Jackson  v.  Frost,  6  Johns.  135. 

The  Supreme  Court  of  Massachusetts  has  decided,  that  a  party  to  a  deed 
of  land,  who  is  not  interested,  is  competent  to  prove  the  deed  fraudulent  or 
r«id.  Hill  T.  Payson,  3  Mass.  Rep.  669.  and  Laker  v.  Haynts,  11  Mass.  Ben. 
498. 


252  OF  THK  EVIDENCE 

concerning  them  ;  for  the  equity  of  redemption  still  re- 
mains in  him.(e)  An  heir  apparent  may,  however,  be  a 
witness  concerning  the  title  of  the  land,  because  his  heir- 
ship  is  a  mere  contingency  ;[8]  but  a  remainderman  can- 
not, for  he  hath  a  present  estate  in  the  land :  and  this  rule 
extends  to  the  remainderman  in  tail.(/) 

Let  us  now  consider  the  proofs  to  be  adduced  by  a  claim- 
ant in  ejectment,  when  his  title  to  the  lands  can  be  contro- 
verted. 

When  the  party  claims  as  heir  at  law,  he  must  prove 
that  the  ancestor  from  whom  he  derives  his  title,  was  the 
person  last  seised  of  the  actual  freehold  and  inheritance  ; 
that  is  to  say,  who  was  last  actually  in  possession  of  the 
lands  in  fee-simple, (g)  and  that  he,  the  claimant,  is  his 
heir. 

This  seisin  of  the  ancestor  may  be  proved  in  the  first 
instance,  by  showing  that  he  was  either  in  the  actual  pos- 
session of  the  premises,  at  the  time  of  his  death,  or  in 

(e)  Anon.\l  Mod.  364.  (g)   Co.   Litt.  11.  b.     Jenkins,  A 

(/)  Smith  v.  Blackham,  Salk.  283.     Harris,  v.  Prilchard,2  Wils.  45. 


But  that  a  pers»n,  who  has  undertaken  to  convey  a  title  to  land,  is  incom- 
petent to  testify  that  he  had  no  tide.  Slorer  v.  Balson,  8  Mass.  Rep.  431. 

The  Supreme  Court  of  Pennsylvania  say,  in  Lessee  of  Cain  v.  Henderson, 
(2  Bin.  Penn  Rep.  108.)  that  the  grantor  of  a  tract  of  land,  who  has  not  given 
any  warranty,  nor  practised  any  deception,  is  a  competent  witness  to  sup- 
port the  title.  And  they  also  say,  in  M'Ferran  v.  Powers,  (1  Serjeant  &, 
Rawle,  102.)  that  the  rule,  that  no  man  shall  be  permitted  to  impeach  his  own 
deed,  applies  only  to  negotiable  instruments  ;  and  a  grantor  in  a  deed  with- 
out warranty  is  a  good  witness  to  invalidate  it. 

[8]  A  remote,  or  contingent  interest,  goes  only  to  the  credit,  and  not  to  th* 
competency  of  a  witness.  Stewart  T.  Kip,  5  Johns.  266. 


BY  HEIRS.  253 

the  receipt  of  rent  from  the  ter-tenant ;  for  possession  it 
presumptive  evidence  of  a  seisin  in  fee,  until  the  contrary 
be  shown.(/t)[9]  If,  however,  it  is  probable  that  the  de- 
fendant may  be  able  to  rebut  this  presumption,  the  lessor 
should  be  prepared  with  other  proofs  of  his  ancestor's  title. 

In  order  to  show  the  heirship  of  the  claimant,  he  must 
prove  his  descent  from  the  person  last  seised,  when  he 
claims  as  lineal  heir,  or  the  descent  of  himself  and  the  per- 
son last  seised  from  some  common  ancestor,  or  at  least 
from  two  brothers  or  sisters,(i)  if  he  claims  collaterally ; 
together  with  the  extinction  of  all  those  lines  of  descent 
which  would  claim  before  him.  This  is  done  by  proving 
the  marriages,  births,  and  deaths,  necessary  to  complete 
his  title,  and  showing  the  identity  of  the  several  parties. 

Thus,  supposing  A.  the  claimant,  and  B.  the  person  last 
seised;  to  be  cousins,  descended  from  a  common  ancestor 
C.,  B.  being  the  only  child  of  Z).,  the  elder  son  of  C.,  and 
A.  the  only  child  of  E.,  the  younger  son  of  C.  In  this 
Case  A.  must  prove  the  marriage  of  C.,  the  birth  and  mar- 
riage of  D.,  the  birth,  marriage,  and  death  of  £.,  the  birth 
and  death  without  issue  of  £.,  and  his  own  birth  ;(j)  for  it 
is  a  maxim  of  law,  that  he  who  asserts  the  death  of  ano- 
ther, who  was  once  living,  must  prove  bis  death,  whether 
the  affirmative  issue  be  that  he  be  dead  or  living. (A:) 


(/»)  B.  N.  P.  103.  (j)  -2  Blk.  Comra.  208,  &c. 

(i)  Roe,  d.  Tlwrnt,  v.  Lord,  2  W.        (k)  Wilson  v.  Uodget,  2  East,  312. 
Blk.  1099. 


[9]  Where  the  ancestor  died  in  possession,  and  his  son  and  heir  succeeded, 
and  continued  in  undisturbed  possession  for  18  years,  it  was  held,  that  a  pur- 
chase of  the  title  by  the  ancestor  might  be  presumed,  Jackson  v,  M'Call,  1O 
Johns.  377. 


254  OF  TriE  EVIDENCE 


The  testimony  of  persons  present  when  the  events  hap- 
pened, or  who  knew  the  parties  concerned  at  those  periods, 
and  the  production  of  extracts  from  parish  registers,  are 
the  most  satisfactory  modes  of  proving  facts  of  this  nature  ; 
and  when  the  claimant  is  the  lineal  descendant  of  the  per- 
aon  last  seised,  but  little  difficulty  can  arise  in  procuring 
the  necessary  proofs.  But  when  he  claims  as  collateral 
heir,  and  it  is  necessary  to  trace  the  relationship  between 
him  and  the  person  last  seised  through  many  descents  to 
a  common  ancestor,  difficulties  often  intervene,  from  the 
remoteness  of  the  period  to  which  the  inquiries  must  be 
directed,  which,  upon  the  ordinary  rules  of  evidence,  would 
be  insuperable.  To  remedy  this  evil,  the  courts,  from  the 
necessity  of  the  case,  have  relaxed  those  rules  in  inquiries 
of  this  nature  ;  and  allow  hearsay  and  reputation  (which 
latter  is  the  hearsay  of  those,  who  may  be  supposed  to  have 
known  the  fact,  handed  down  from  one  to  another)  to  be 
admitted  as  evidence  in  cases  of  pedigree.  (/)[1][2] 

Thus,  declarations  of  deceased  members  of  the  family 
are  admissible  evidence  to  prove  relationship  ;  as  who  was 

(0  Higham  v.  Ridgway,  10  East,  120. 


[1]  Ip  an  action  of  ejectment  the  lessors,  who  claimed  to  be  heirs,  resided 
in  England,  a  witness  here  deposed  that  he  knew  the  ancestor,  and  had  charge 
of  his  land  as  agent,  and  corresponded  with  him,  and  after  his  death  with  the 
lessor,  who  sent  him  a  power  of  attorney  to  act  for  him  as  heir  and  devisee, 
and  that  his  information  was  also  derived  from  persons  acquainted  with  the 
lessor's  family ;  it  was  held,  this  was  prima  facie  sufficient  evidence  of  pedi- 
gree to  go  to  the  jury.  (Spencer,  J.  dissenting.)  Jackson  v.  Cooley,  8  Johns 
128. 

[2]  Where  witnesses  are  not  connected  with  the  family,  have  no  personal 
knowledge  of  the  facts  of  which  they  speak,  and  have  not  derived  their  infor- 
mation from  persons  connected  or  particularly  acquainted  with  the  family. 
but  speak  generally  of  what  they  have  heard,  their  testimony  will  not  be  rc: 
reived  to  prove  a  pedigree.  Jackson  v.  Browner,  18  Johns.  37. 


BY  HEIRS.  255 

a  person's  grandfather,  or  whom  he  married,  or  how  many 
children  he  had,  or  as  to  the  time  of  a  marriage,  or  of  the 
birth  of  a  child,  and  the  like,  of  which  it  cannot  reasonably 
be  presumed,  that  better  evidence  is  to  be  procured. (m)[3j 
So  also  declarations  made  by  a  deceased  husband,  as  to  the 
legitimacy  of  his  wife,  are  evidence,  though  he  was  not  re- 
lated to  her  by  blood  ;  for  the  husband  must  be  supposed 
to  have  more  intimate  knowledge  on  that  subject  than  a 
distant  relation. (w)  In  like  manner  the  declarations  of 
parents,  as  to  whether  they  were  ever  married,  or  whether 
their  children  were  born  before  or  after  marriage,  is 
admissible  evidence ;  although  their  declarations  cannot 
be  received  to  bastardize  their  children  born  in  wed- 
lock.(o)[4] 

But  hearsay  evidence  is  not  admissible  to  prove  the 
place  of  any  particular  birth  ;  for  that  is  a  question  of 
locality  only,  and  does  not  fall  within  the  principle  of  the 
rules  applicable  to  cases  of  pedigree  :(p)  nor  are  the  opi- 
nions of  deceased  neighbours,  or  of  the  acquaintances  of 
the  family,  evidence  on  questions  of  this  nature  5(9)  nor  is 


Cm)  B.  N.  P.  294.  (?)  Vowels  v.  Young,  13  Vez.  147, 

(n)    Vowels  v.  Young,  13  Vez.  jun.  614.      Rex    v.    Inhabitants   of  Ens- 

148.  well,  3  T.   R.  7u7,  723.      Week*  T. 

(o)    Goodnghl,  d.  Stevens,  v.  Moss,  Sparke,  1   M.   it  S.  688.  et  vide  14 

Cowp.  591.  East,  330. 

(p)    Rex  v.  Inhabitants  of  Erith, 
S  East,  542. 


[3]  Hearsay  is  admissible  evidence  of  the  death  of  a  person.  Jackson  \. 
Boneliam,  15  Johns.  226. 

[4]  Declarations  m  extremis  are  inadmissible,  except  in  the  single  instance 
•f  homicide.  Wilson  v.  Doer  tin,  15  Johns.  286. 

The  declarations  of  a  person,  who  is  himself  a  competent  witness,  cannot 
be  given  in  evidence.  H  ovdard  v.  Paine  &  Lake,  15  Johns  4U3. 


256  OF  THE  EVIDENCE 

the  hearsay  of  a  relative  to  be  admitted  when  the  relative 
himself  can  be  produced. (r)  It  is  also  necessary,  in  order 
to  entitle  the  declarations  of  a  deceased  relative  to  be  ad- 
mitted, that  they  should  be  made  under  circumstances, 
when  the  relation  may  be  supposed  without  an  interest, 
and  without  a  bias ;  and,  therefore,  if  they  are  made  on  a 
subject  in  dispute  after  the  commencement  of  a  suit,  or 
after  a  controversy  preparatory  to  one,  they  ought  not  to 
be  received,  on  account  of  the  probability  that  they  were 
partially  drawn  from  the  deceased,  or,  perhaps,  intended  by 
him  to  serve  one  of  the  contending  parties. (s) 

Entries  in  family  bibles,  or  other  books,  may  likewise  be 
received  in  evidence  in  questions  of  pedigree. (<)  So  also 
recitals  in  family  deeds,  monumental  inscriptions,  engrav- 
ings on  rings,  old  pedigrees  hung  up  in  a  family  mansion, 
and  the  like.(u)  And  where  a  will  of  a  deceased  ancestor 
was  found,  amongst  the  papers  of  the  person  last  seised, 
cancelled,  and  no  evidence  was  given  of  its  having  ever 
been  proved  or  acted  upon,  it  was  nevertheless  allowed  to 
be  read  in  evidence  as  a  paper  relating  to  the  family  ;  the 
place  in  which  it  was  found  being  considered  as  amounting  to 
its  recognition,  by  the  party  last  seised,as  the  declaration  of 
his  ancestor  concerning  the  state  of  his  family.(w)  And  in 
a  late  case,  proof  by  one  of  the  family,  .that  a  particular 
person  had  many  years  before  gone  abroad,  and  was  sup- 
posed to  have  died  there,  and  that  the  witness  had  not 
heard  in  the  family  of  his  having  married,  was  held  good 


(r)    Pendrell   v.  Pendrell,    Stran.  •      (/)    Whitlocke  v.  Baker,  13  Ve*. 
294.     Harrison  v.   Blades,  3  Campb.    614. 
467.  (u)     Vowel*  T.    Young,    13    Vez. 

(*)  The  case  of  the  Berkeley  Peer-     148. 

fige,  4  Campb.  401.  (r)  Doe,  d.  Johnson,  v.  Lord  Pem- 

broke, 11  East,  505. 


BT  HEIRS.  257 

prima  facie  evidence  of  the  person's  death  without  lawful 
issue. (tc) 

The  original  visitation  books  of  heralds,  compiled  when 
progresses  were  solemnly  and  regularly  made  into  every 
part  of  the  kingdom,  to  inquire  into  the  state  of  families, 
and  to  register  such  marriages  and  descents  as  were  veri- 
fied to  them  on  oath,  are  allowed  to  be  good  evidence  of 
pedigrees. (x) 

When  the  lessor  claims  as  heir  to  copyhold  premises,  he 
must,  in  addition  to  the  foregoing  evidence,  produce  the 
rolls  of  the  manor,(7/)  which  show  a  surrender  to  him,  or  to 
those  under  whom  he  claims  ;  but  it  is  not  necessary  that 
he  should  prove  his  own  admittance,  unless  the  ejectment 
be  against  the  lord. (2)  If,  however,  the  ejectment  is 
against  the  lord,  he  must  either  show  that  he  is  admit- 
ted, or  that  he  .has  tendered  himself  to  be  admitted  and 
been  refused  ;  but  it  is  not  necessary  to  tender  himself  to 
be  admitted  at  the  lord's  court,  if  the  steward,  upon  appli- 
cation out  of  court,  has  refused  to  admit  him. (a) 

When  he  claims  as  customary  heir,  he  must,  after  prov- 
ing his  pedigree,  show  that  he  is  heir  strictly  within  the 
custom,  for  every  custom  which  departs  from  the  common 
law  is  construed  strictly  ;  and  if  the  custom  be  silent,  the 
common  law  must  regulate  the  descent.(i)  Thus,  where 
the  custom  is  that  the  eldest  sister  shall  inherit,  the  eldest 

(to)  Doe,  d.  Banning,  v.    Grffii,  Holilfasl,  d.  Woollams,  v.  Clapham,  1 

15    East,   293.   et  vide    19  Car.  U.  E.  R.  600.     Doe,  d.  Tarrant,  v.  //«/- 

c.  6.  R.  1.    Doe,  d.  George,  v.  Jetton,  Her,  3  T.  R.  162.    Ante,  66. 

6  East,  80.  (a)  Doe,  A    Burrell,  Y.  Bellamy,  2 

.  (x)  2  S.  N.  P.  772.  M.  &t  S.  87.    Ante,  67. 

(y)  Pott.  270.  (6)  Co.  Copy,  43. 
(z)  Rwnruy  Y.  Eva,  1  I  eon,  100. 

33 


238  OF  THE  EVIDENCE 

aunt,  or  niece,  is  not  within  it.(c)  So,  also,  if  the  custom 
be  that  the  youngest  son  shall  inherit,  it  will  not  extend  to 
the  youngest  nephtw.(d) 

The  usual  method  of  proving  these  several  customs,  is 
by  means  of  the  different  admissions  of  the  customary  hein 
upon  the  court  rolls  of  the  manor,  produced  by  the  steward 
upon  oath,  or  by  the  medium  of  verified  examined  copies. 
But  if  the  ancient  court  rolls  should  be  lost,  or  there  should 
be  no  instance  of  an  admission  upon  them,  similar  to  the  cus- 
tom set  up  by  the  lessor,  an  entry  upon  the  rolls,  stating  the 
mode  of  descent  of  lands  in  the  manor,  will  be  admissible 
evidence  as  to  the  existence  of  the  custom. (e)  Where, 
however,  the  lessor  claimed  as  youngest  nephew,  and  pro- 
duced, as  the  only  evidence  to  support  his  title,  an  admis- 
sion upon  the  court  rolls  of  a  youngest  nephew,  as  custo- 
mary heir,  at  a  court-leet  and  baron  held  in  1657  ;  and  for 
the  defendant  it  appeared  .upon  the  same,  rolls,  that  at  a 
court-leet  and  baron  held  in  1692,  the  jury  and  homage 
found,  that  the  custom  of  descent  extended  only  to  the 
youngest  son,  and  if  no  son,  to  the  youngest  brother,  and 
no  farther ;  (which  entry  was  corroborated  by  two  old  wit- 
nesses, who  testified,  that  they  had  heard  and  believed  that 
the  custom  went  no  farther ;)  upon  a  verdict  being  found 
for  the  lessor  of  the  plaintiff,  the  Court  refused  to  set  it 
aside.  (/) 

It  may  here  be  useful  to  observe,  that  when  the  lessor 
claims  as  heir,  and  proves  his  pedigree  and  stops,  and  the 
defendant  sets  up  a  new  case,  which  is  answered  by  fresh 

(c)  Radeltff  v.  Cliaplin,  4  Leon.  T.  R  26.  Denn,  d.  Goodwin,  v.  Spray, 

242.  1  T.  R.  466. 

(rf)  1  Roll.  624.  (/)  Doe,   <L  Maton,  v.  Mown,  3 

(e)  Roc,  A.  Beebee,  T.  Parker,  5  Wils.  68. 


BY  HEIRS.  259 

evidence  on  the  part  of  the  lessor,  the  defendant  is  entitled 
to  the  general  reply. (g)  And  if,  after  the  pleadings  are 
opened  by  .the  junior  counsel  for  the  lessor,  the  defendant's 
counsel  expresses  himself  ready  to  admit  the  lessor  to  be 
the  heir,  it  will  entitle  him  to  open  the  case,  and  make  the 
first  address  to  the  jury.(^) 

When  the  lessor  claims  as  the  devisee  of  a  freehold  inte- 
rest at  common  law,  or  of  a  customary  freehold  where  there 
is  no  custom  to  surrender  to  the  use  of  the  will,(t)  he  must 
prove  the  seisin  of  his  devisor,(^')[5]  a«d  the  due  execu- 
tion of  the  will,  (unless  it  be  more  than  thirty  years  old,) 
pursuant  to  the  provisions  of  the  statute  29  Car.  II.  c.  3.  s. 
5.  If,  however,  the  will  be  thirty  years  old,  or  upwards, 
it  may  be  read  in  evidence  without  proof  ;[6]  and,  it  seems, 

(g)  Ooodtitle,  d.  Revett,  v.  Bra/jam,  MS.— But  ruled  contra  by  Gibbt,  J. 

4  T.  R.  497.  in  a  previous  ejectment  between  the 

(A)  So  ruled  by  Le  Blanc,  J.   in  same    parties,   Derby  Lent   Assizes, 
Fenn,  d.  Wright,  v.  Johnson,  Netting-  1813,  MS.  on  the  principle  that  a  de- 
ham    Summer  Assizes,    1813,    MS.  fendant  cannot  compel  a  plaintiff  to 
and   by   Wood,   B.   in  a  subsequent  receive  admissions, 
ejectment  between  the  same  parties,  (t)  Hutsey  v.  Grill*,  Arab.  299. 
Nottingham     Lent     Assizes,     1814,  (j)  Ante,  252. 


[6]  A  devise  of  land  held  adversely  is  void,  and  it  descends  to  the  heir. 
Smith  v.  I'miili  until,  15  Johns.  343. 

[6]  An  ancient  will  stands  on  the  same  rule  of  evidence  with  an  ancient 
deed.  In  order  thai  a  will  may  be  given  in  evidence  as  an  ancient  deed,  there 
should  have  been  a  possession  of  thirty  years  in  conformity  to  it.  Jackson  v. 
Blanshan,  3  Johns.  292. 

It  is  the  accompanying  possession  alone  which  establishes  the  presumption 
of  authenticity  in  an  ancient  deed,  and  where  possession  fails,  the  length  of 
time  from  the  date  will  not  help  the  deed.  ////</  297. 

But  where  the  premises  in  question  were  in  a  wild  and  uncultivated  state, 
and  upon  the  will  were  endorsed  certificates  of  its  execution,  and  of  its  being 
recorded,  by  persons  whose  hand-writing  could  be  proved,  the  will  was  allow- 
ed to  be  given  in  evidence.  (Kentt  J.  dissenting.)  Jackson  v.  Lanoicay,  3 
Johns.  Cas.  283. 


260  OP  THE  EVIDENCE 

that  the  age  of  the  will  is  to  be  reckoned  from  the  day  it 
bears  date,  and  not  from  the  time  of  the  testator's  death.(Ar) 

The  statutory  regulations  for  the  execution  of  wills,  con- 
tai  ling  devises  of  freehold  lands,  are  to  be  found  in  the  fifth 
sectio  i  of  the  statute  of  frauds, (/)  whereby  it  is  enacted, 
that,  "  all  devises  and  bequests  of  any  lands,  or  tenements, 
"  devisable  cither  by  force  of  the  statute  of  wills,  or  by 
"  that  statute,  or  by  force  of  the  custom  of  Kent,  or  the 
"  custom  of  any  borough,  or  any  other  particular  custom, 
"  shall  be  in  writing,  and  signed  by  the  party  so  devising 
"  the  same,  or  by  some  other  person  in  his  presence,  and 
"  by  his  express  direction,  and  shall  be  attested  and  sub- 
"  scribed,  in  the  presence  of  the  devisor,  by  three  or  four 


(fc)  M'Ktnire  v.  Fraser,  9  Vez.  jun.    d.  Calthorpe,  v.  Gough,  4  T.  R.  707. 
5.  el  vide  n.  i  to  the  case  of  Gough,    (in  notit.) 

(/)  29  Car.  II.  c.  3. 


The  act*  and  declarations  of  third  persons  in  possession,  are  admissible  to 
prove  a  possession  under  an  ancient  will,  so  as  to  entitle  it  to  be  read  as  an 
ancient  deed.  Jackson  v.  Vandeusen,  5  Johns.  144. 

Li  the  case  of  Gtirwood  v  Dennis,  (4  Binncy,  314.)  the  Supreme  Court  of 
Pennsylvania  decide,  that  in  the  case  of  an  ancient  deed,  of  the  loss  of  which 
some  evidence  has  been  given,  where  the  possession  has  n  >t  been  contrary  to 
the  deed,  and  where  the  subscribing  witnesses  have  been  long  dead,  a  recital 
in  another  deed,  particularly  if  made  by  persons  likely  to  know  the  fact,  is 
evidence  of  the  lost  deed.  So  a  deed  containing  such  a  recital,  by  a  person 
to  whom  the  lost  deed  is  alleged  to  have  been  given,  and  who  has  been  in  the 
possession  a  longtime,  may  be  evidence  to  show  the  nature  of  his  possession, 
and  that  he  exercised  acts  of  ownership,  and  held  under  the  lost  deed. 

The  Supreme  Court  of  the  United  States  have  decided,  in  the  jcase  of  Barr 
v.  Gratz,  (4  Wbeaton,  215,  221.)  that  a  deed  more  than  30  years  old,  proved 
to  have  been  in  the  possession  of  plaintiff',  and  actually  asserted  by  him  at  the 
ground  of  his  title  in  a  Chancery  suit,  v.  as  admissible  without  regular  proof 
of  its  execution. 

A  deed  cannot  be  given  in  evidence  until  some  interest  is  shown  in  the 
grantor.  Lessee  of  Peters  v.  Cmulfon,  2  Serjeant  i:  Rawle's  Penn.  Rep.  80. 
But  this  rule  cannot  apply  to  an  ancient  <\c-<\ 


BY  DEVISEES.  261 

«  credible  witnesses,  or  else  shall  be  utterly  void  and  of 
<c  none  effect." 

This  section  of  the  statute  of  frauds  is  very  loosely  word- 
ed, and  it  will  be  necessary  to  enter  rather  largely  into  the 
different  points,  which  have  arisen  respecting  the  due  exe- 
cution of  a  will  under  it. 

The  first  solemnity  required  is  the  signature  of  the  tes- 
tator ;  but  it  is  not  necessary  that  he  should  sign  his  name 
at  the  bottom  of  the  will ;  it  is  sufficient  if  his  name  be  in 
any  part  of  it  in  bis  own  handwriting.  As,  for  instance,  a 
will  in  the  handwriting  of  the  testator,  beginning  with  the 
words, "  I,  A.  B.,  do  make  this  my  last  will,"  has  been  held 
to  be  properly  signed  :(m)  and  if  the  testator  cannot  write, 
his  mark  will  be  a  sufficient  signature. (n)  But  if  the  will 
be  on  several  sheets,  and  it  appear  to  have  been  the  inten- 
tion of  the  testator  to  sign  every  one,  but,  from  weakness 
or  incapacity,  he  leave  some  of  them  unsigned,  it  will  not, 
it  seems,  be  a  sufficient  execution  within  the  statute. (o)  The 
effect  of  sealing  alone  is  not  yet  quite  decided  ;  but  it  is 
the  better  opinion,  that  it  is  not  a  sufficient  signature. (/?) 

It  is  not  required  by  the  statute,  that  the  witnesses  should 
see  the  devisor  sign,  or  that  he  should  sign  in  their  pre- 
sence, or  that  they  should  be  informed  of  the  nature  of  the 
instrument  they  are  about  to  attest ;  it  is  sufficient,  if  the 
devisor  declare  to  them,  that  the  signature  is  his  handwrit- 


(m)  Ltmaynt  v.  Stanley,  3  LCT.  1.  (p)  Lemayne  v.  Stanley,  3  Lev.  1. 

(n)  Harriton  v.  Harrison,  8  Ves.  Lee  v.  Libb,  I  Show.  61).  S.  C.  Carth 

jon.  185.  and  Addy  v.  Qrix,  8  Ve».  36.  Warntforilv.  Warntford,  Strnn 

jun.  fiii  I.  764.  Smith  v.  Krant,  1  Wils.  31:i 

(o)  Right,  d.  Cator,  v.  Part,  Doug.  Ellis  v.  Smith.  )  Vcs.  jnn.  11.  S.  C. 

241.  IDifl 


OF  THE  EVIDENCE 

ing,  or  even,  it  seem?,  without  such  declaration,  if  the  whole 
body  of  the  will,  as  well  as  the  name  be  written  by  him- 
self.^) And  in  a  late  case  where  the  testator  was  blind, 
the  Court  of  Common  Pleas  determined,  that  it  was  not 
necessary  on  that  account,  under  the  statute,  to  read  over 
the  will,  previous  to  the  execution,  in  the  presence  of  the 
attesting  witness ;  although,  if  there  were  other  circum- 
stances inducing  a  suspicion  of  fraud,  such  an  execution 
would  materially  strengthen  the  presumption. (r) 

The  next  formality  is  the  attestation  and  subscription. 
It  must  be  attested  and  subscribed  by  three,  or  more  wit- 
nesses, but  it  is  not  neces'sary  that  the  attestation  and  sub- 
scription of  all  the  witnesses  should  be  at  one  time.  Hence, 
where  the  devisor  published  his  will  in  the  presence  of  two 
witnesses,  who  subscribed  it  in  his  presence,  and  some  time 
after  he  sent  for  a  third  witness,  and  published  it  in  his  pre- 
sence also,  the  will  was  holden  to  be  duly  attested. (s)  But 
it  is  necessary  that  all  the  witnesses  attest  the  same  instru- 
ment, and  that  the  instrument  attested  be  that  by  which  the 
lands  are  intended  to  pass.  Therefore,  where  a  testator 
devised  his  lands  by  a  will,  made  in  the  presence  of,  and 
attested  by  two  witnesses  only,  and  about  a  year  after  made 
a  codicil,  whereby  he  revoked  a  legacy  given  by  his  will,[7] 

(q)   Grayson  v.  Atkinson,    2  Ves.  (r)  Longchamp,  d.   Goodfellow,  t. 

454.     Ellis  v.  Smith,  1  Ves.  jun.  11.  Fish,  2  N.  R.  415. 

S.   C.    1  Dick.   225.       Trymner   v.  (*)  Gryle  v.  Gryle,  2  Atk.  17.  (n.) 

Jackson,   cited    1    Ves.    487.    recog.  Ellis  v.    Smith,    1  Ves.  jun.    11.  14. 

2  Ves.  258.     Stonehouse  v.  Evelyn,  Grayson  v.  Atkinson,  2  Ves.  454.  458' 

3  P.    Wra.    255.     Peate  v.  Ougly, 
Corny  n,  197. 


[7]  Parol  evidence  of  the  revocation  of  a  will  is  inadmissible,  for  the  sta- 
tute declares  no  will%hall  be  revoked  except  in  writing.    Jackson  v. 
3  John*.  33. 


BY  DEVI9EB3,  265 

and  declared  that  the  will  should  be  ratified  and  confirmed 
in  all  things,  except  as  altered  by  that  writing,  and  that  his 
codicil  should  be  taken  as  part  of  his  will  ;[8]  and  executed 
this  codicil  in  the  presence  of  one  of  the  former  witnesses 
and  another  person,  neither  the  first  will,  nor  the  other 
witness  to  it,  being  present,  it  was  holden  to  be  an  insuffi- 
cient attestation. (<)  And  where  a  testator,  by  a  will  not 
witnessed,  devised  lands,  and  afterwards  made  a  codicil,  and 
taking  the  codicil  in  one  hand,  and  the  will  in  the  other, 
•aid,  "  This  is  my  will  whereby  I  have  settled  my  estate, 
and  I  publish  this  codicil  as  part  thereof,"  the  signature  of 
the  codicil,  by  the  testator  and  three  witnesses,  was  held 
insufficient  to  render  the  will  valid. (u)  But  if  there  be 
several  instruments  written  by  the  testator  upon  one  paper, 
and  it  plainly  appear  that  his  intention  was,  that  all  should 
form  but  one  will,  and  not  a  will  and  codicil,  in  such  case, 
the  execution  of  the  last  instrument  will  be  considered  as 
an  execution  of  the  whole.(^)[9]  So,  also,  if  a  will  be 


(/)  Lee  v.  Libb,  3  Lev.  1.     S.  C.    cited  Com.  384.    Attornty  General  v. 
Garth.  36.  Barnes,  Free.  Cha.  270. 

(a)  Pen/;/iro*e  v.  Lord  Lansdown,        (v)  Carleton,  d.  Griffin,  v.  Griffin, 

Burr.  649. 


The  mere  act  of  cancelling  a  will  is  nothing,  unless  h  be  done  animo  revo 
tandi.  Jatkton  v.  Hallmcay,  7  Johns.  394. 

[8]  A  devise  of  lands  will  not  pass  lands  acquired  subsequently  to  the  exe- 
cution of  the  will  without  a  republication.  Jackson  v.  llalloiray,  7  Johns.  394. 
Jackson  v.  Potter,  9  Johns.  312. 

A  republication  must  be  made  with  the  same  solemnities  as  the  original 
will.  Jackson  v.  Potter,  9  Johns.  312. 

Where  devisor  made  a  memorandum  on  his  will  to  make  a  devise  extend 
to  all  his  lands,  which  was  attested  by  only  two  witnesses,  it  was  held  inope- 
rative. Jackton  v.  Halloway,  7  Johns.  394. 

[9]  A  will  may  be  construed  in  connexion  with  another  instrument  in  writ 
iqg  to  which  it  refers.  Jackton  v.  Babcock,  12  Johns.  389 


264  OP  THE  EVIDENCE 

written  upon  several  sheets  of  paper,  but  at  one  time,  it 
will  be  valid,  although  all  the  sheets  are  not  executed  by 
the  testator,  nor  signed  by  the  witnesses,  nor  even  seen  by 
them,  provided  the  last  sheet  be  regularly  signed  and  at- 
tested, and  every  part  of  the  will  be  present  at  the  time 
of  the  execution  ;  of  which  latter  fact  the  presumption  of 
law  will  be  in  favour,  should  the  different  sheets  corres- 
pond.(zo)[l] 

The  attestation  and  subscription  of  the  witnesses  must 
be  in  the  presence  of  the  testator,  but  proof  need  not  be 
given,  that  the  testator  actually  did  see  the  witnesses  sub- 
scribing :  their  attestation  is  sufficient,  if  it  appear  that  he 
might  see  them.  Thus,  where  the  witnesses  signed  in  a  room 
adjoining  to  the  one  which  contained  the  testator's  bed, 
upon  a  table  opposite  to  the  door  of  communication,  it  was 
holden  to  be  sufficiently  in  the  testator's  presence. (x)  So, 
also,  where  the  testator  executed  his  will  in  his  carriage, 
and  the  witnesses  signed  their  names  in  a  room  hard  by, 
the  carriage  being  in  such  a  situation  as  to  enable  the  tes- 
tator to  see  what  was  passing  in  the  room,  the  will  was  held 


(w)  Bond  \.  Seawell,  Burr.  1773.  S.        (x)  Shires  v.  Glasscock,   Salk. 
C.    W.  Blk.  407.    B.  N.  P.  264.  Davy  v.  Smith,  3  Salk.  395. 


[1]  An  alteration,  whether  material  OF  immaterial,  made  in  a  will,  by  a 
person  claiming  under  it,  renders  it  void.  Jackson  v.  Matin,  15  Johns.  297. 
"  But,"  (says  Mr  Justice  Plait  in  that  case,)  "  I  do  not  agree  with  the  opi- 
nion expressed  in  Pigol't  case,  (11  Co.  26.)  that  a  material  alteration,  though 
made  by  a  stranger,  and  without  the  privity  of  the  person  claiming  under  it, 
renders  it  void.  See  3  T.  R.  151.  4  T.  R.  320.  6  Taunt.  707.  2  Pothier, 
by  Evans,  179,  180,  181. 

The  Supreme  Judicial  Court  of  Massachusetts  have  decided,  (9  Mags.  Rep. 
307.  Hatch  v.  Hatch,)  that  a  material  alteration  will  not  avoid  a  deed.  The 
cancelling  of  a  deed  would  not  devest  property  that  had  passed  by  it,  and  the 
deed  as  altered  was  evidence  for  the  consideration  of  a  jury. 


BY  DEVISEES.  265 

to  be  valid. (y)     But  if  the  testator  could  not  possibly  see 
the  witnesses  subscribe,  as  if  they  subscribe  in  another  room 
out  of  sight,  although  by  the  testator's  express  directions, 
the  execution  will  not  be  good  :  the  design  of  the  statute 
being  to  prevent  a  wrong  paper  from  being  intruded  on  the 
testator  in  the  place  of  the  true  one. (2)     And  upon  this 
principle,' if  the  testator,   between  the  time  of  his  own 
subscription,  and  the  subscription  of  the  witnesses,  lose  his 
mental  powers,  it  will  invalidate  the  will,  although  signed 
in  his  presence. (a) 

The  clause  of  attestation  generally  expresses,  that  the 
witnesses  subscribed  in  the  presence  of  the  testator ;  but 
such  a  statement  is  not  absolutely  necessary,  and  if  omitted, 
the  jury  will  not  be  concluded  from  finding  that  the  will 
was  duly  subscribed,  although  all  the  witnesses  are  dead, 
and  their  signatures  proved  in  the  common  way. (b) 

With  respect  to  the  credibility  of  the  attesting  witnesses, 
it  may  be  observed  generally,  that  they  must,  at  the  time 
of  their  attestation,(c)  have  the  use  of  their  reason,(e?)  be 
sensible  of  the  obligation  of  an  oath,(e)  and  unconvicted  of 
any  infamous  crime. (/)  Formerly  a  devisee,  taking  a  ber 
neficial  interest  under  the  will,  was  considered  not  a  cre- 
dible witness  to  prove  its  execution  within  the  intent  of  the 


(y)  Cotton  v.  Dade,  1  Bro.  C.  C.  Brice  v.  Smith,  Willes,  1.     Croft  r. 

99.  Paulet,  Stran.  1109. 

(i)  Eecletlon  v.   Petty,  Carth.  79.  (c)  Pendoek,  d.  Mackindcr,  T.  Mae- 

Broderick  v.   Broderick,    1   P.  Wins,  kinder,  Willes,  665. 

239.     Machd  v.    Temple,  2  Show.  (rf)  Gilb.  Evid.  109. 

i^  (e)  Hales,  P.  C.  2  vol.  279—  Omi- 

(a)  Right,  d.  Color,  r.  Price,  Dong,  ckund  v.  Barker,  Willes,  538. 

241.  (/)  31  Geo.  III.  c.  36.     CMtr  r. 

(b)  Handt  r.   Jamet,   Com.  631.  Hawkins,  9  Ler.  4*J. 

34 


266  OF  THE  EVIDENCE 

statue  ;(g)  but  doubts  being  entertained,  whether  his  credi- 
bility might  not  be  restored  by  a  release,  payment,  or  ex- 
tinguishment of  all  his  interest,(A)  it  is  enacted  by  the  sta- 
tute 25  G.  II.  c.  6.,  (after  reciting  that  it  had  been  doubted 
who  were  to  be  deemed  legal  witnesses  within  the  statute 
of  frauds,)  "  that  if  any  person  shall  attest  the  execution  of 
"  any  will  or  codicil,  (to  whom  any  beneficial  4ev'se5  le~ 
"  gacy,  estate,  interest,  gift,  or  appointment,  affecting  any 
"  real  or  personal  estate,  except  charges  on  land,  &c.  for 
"  payment  of  debts  shall  be  given,)  such  devise,  legacy,  &c. 
"  shall,  so  far  only  as  concerns  such  person  attesting  the 
"  execution,  or  any  person  claiming  under  him,  be  utterly 
"  null  and  void ;  and  such  person  shall  be  admitted  as  a 
"  witness  to  the  execution  of  such  will  or  codicil,  within 
"  the  intent  of  the  said  act,  notwithstanding  such  devise, 
"  legacy,  &c.  And  in  case  any  will  or  codicil  shall  be 
"  charged  with  any  debt,  and  any  creditor,  whose  debt  is 
"  so  charged,  shall  attest  the  execution  of  such  will  or  co- 
"  dicil,  every  such  creditor,  notwithstanding  such  charge, 
"  shall  be  admitted  as  a  witness  to  the  execution  of  such 
"  will  or  codicil,  within  the  intent  of  the  said  act.  Pro- 
**  vided,  always,  that  the  credit  of  every  such  witness,  so 
"  attesting  the  execution  of  any  will  or  codicil,  in  any  of 
"  the  cases  within  this  act,  and  all  circumstances  relating 
"  thereto,  shall  be  subject  to  the  consideration  and  deter- 
"  mination  of  the  Court  and  the  jury,  before  whom  any 
"  such  witness  shall  be  examined,  or  his  testimony,  or  at- 
"  testation  made  use  of,  in  like  manner  as  the  credit  of  wit- 
"  nesses  in  all  other  cases  ought  to  be  considered  and  de- 
"  termined."  It  seems,  however,  notwithstanding  the  pro- 
visions of  this  statute,  that  a  married  woman  is  not  a  credi- 

(g)    Hilliard   v.    Jennings,    1  Ld.         (A)  Vide  dnsley  v.  Dowsing,  2  Strati.  , 
Raym.  506.     S.  C.  Com.  Rep.  91.          1253.     Wyndam  v.  Cheitcynd,  1  Burr 

414. 


BY  DEVISEES.  26*7 

ble  witness  to  attest  a  will  under  which  her  husband  takes 
a  beneficial  interest.(t)[2] — [3] 

The  result  of  the  foregoing  inquiry  seems  to  be,  that  in 
order  to  prove  a  will  duly  executed  within  the  statute  of 
frauds,  it  must  appear  that  it  was  signed  by  the  testator ; 
that  it  was  published  by  him  in  the  presence  of  three  or 
more  credible  witnesses,  either  at  the  same,  or  different 
times ;  that  the  witnesses  subscribed  their  names  respec- 
tively in  the  presence  of  the  testator ;  and  that  they  all 
signed  the  same  instrument. 

To  prove  these  facts,  the  original  will  should  be  produced, 
and  one  of  the  subscribing  witnesses  must  be  called  to  show 
that  the  solemnities  required  by  the  statute  have  been  com- 
plied with.  And  if  such  witness  can  prove  the  whole  exe- 
cution, (as  that  the  testator  signed  in  the  presence  of  him- 
self and  two  other  witnesses,  or  that  he  acknowledged  his 
signing  to  each  of  them,  and  that  each  of  the  witnesses  sub- 
scribed in  his  presence,)  this  will  be  sufficient  proof  of  the 
will,  without  calling  the  others.  But  if  the  witness  who  is 
called  can  only  prove  his  own  share  of  the  transaction,  as 
must  happen  where  the  testator  acknowledged  his  signing 
to  the  witnesses  separately,  the  other  witnesses  ought  in 
that  case  to  be  called. (j)  If,  also,  the  will  is  disputed  by 

(0  Bettiton  v  Bromley,  12  East,  250.      (j)  Phillipps'  Evidence,  3d.  Edit.  439. 


[2]  A  devise  to  a  witness  is  absolutely  void  ab  initio,  so  that,  although  he 
grants  away  all  his  interest,  he  cannot  become  a  competent  witness  to  estab- 
lish the  devise.  Jackson  v.  Denniston,  4  Johns.  311. 

[3]  If  either  husband  or  wife  be  a  witness  to  a  will  containing  a  devise  to 
the  other,  the  devise  is  absolutely  void,  and  the  party  is  a  competent  witness 
to  the  will.  Jackson  v.  Woods,  1  Johns.  Cas.  163.  Jackson  T.  Durland,  2  Johns. 
CUw.  314, 


268  OF  THE  EVIDENCE 

the  heir  at  law,  he  is  always  entitled  to  the  testimony  of  all 
the  subscribing  witnesses  ;  but  then  he  must  produce  them 
himself,  if  the  testimony  of  one  is  sufficient  for  the  devisee. 
If,  however,  all  the  witnesses  are  dead,[4]  or  insane,  or  out 
of  the  jurisdiction  of  the  court,  proof  of  the  hand-writing 
of  the  devisor  and  witnesses,  or  of  the  devisor  alone,  if  no 
proof  of  the  hand-writing  of  the  witnesses  can  be  obtained, 
will  be  sufficient  without  evidence  of  the  solemnities. (&)[5] 
If  the  will  be  lost,  an  examined  copy  of  it  should  be  pro- 
duced, or  parol  evidence  be  given  of  its  contents  ;[6]  but 

(k)  Hands  r.  Jamts,  Com.  631.  Croft  v.  Pawhtt,  Stran.  1109. 


[4]  The  testimony  of  a  deceased  witness  in  a  former  suit,  is  evidence  not 
only  where  the  same  point  in  issue  afterwards  arises  between  the  same  par- 
ties, but  also  against  persons  standing  in  the  relation  of  privies  in  blood,  pri- 
vies in  estate,  or  privies  in  law.  Jackson  \.  Lawsnn,  15  Johns.  539. 

But  the  party  ofiipring  such  evidence  must  show  the  witness  to  be  dead. 
Powell  v.  Waters,  17  Johns.  176. 

Where  a  subscribing  witness  in  the  state  was  too  aged  and  infirm  to  at- 
tend the  .trial,  proof  of  his  hand-writing  was  excluded,  for  his  examination 
should  have  been  taken  under  the  statute,  or  by  order  of  Court.  Jackson  v. 
Root,  18  Johns.  60. 

[5]  Where  subscribing  witnesses  to  a  will  were  all  dead,  and  one  of  them 
had  signer!  the  initials  of  his  name  as  his  mark,  and  a  witness  swore,  that 
from  a  comparison  with  another  paper  signed  by  the  subscribing  witness  in 
the  same  manner,  he  believed  the  mark  to  the  will  to  be  made  by  the  witness, 
this  was  held  sufficient  evidence  to  go  to  the  jury,  when  accompanied  by  evi- 
dence of  possession  by  the  devisees  under  the  will.  Jackson  r.  Vanduttn,  & 
Johns.  144. 

[6.]  To  entitle  a  party  to  give  parol  proof  of  a  will,  on  the  ground  of  its  be- 
ing lost,  he  must  show  a  search  in  the  office  of  the  Surrogate  of  the  County, 
whfre  testator  died,  (or  in  the  office  of  the  Judge  of  Probates,)  and  an  in- 
quiry of  the  executors.  Jackson  v.  Hasbrouck,  12  Johns.  192. 

Evidence  that  a  deed  was  left  in  the  clerk's  office  to  be  recorded,  and  that 
upon  search  it  cannot  be  found,  is  not  sufficient  to  show  its  loss,  without  show- 
ing that  it  was  never  re-delivered  by  the  clerk.  Jackson  v.  Todd,  3  Johns. 
300. 

Where  plaintiff  derived  title  from  A.,  who  derived  title  from  B  .  he  could 


BY  DEVISEES.  269 

the  probate,  under  the  seal  of  the  Ecclesiastical  Court,  will 
not  be  admitted  as  such  secondary  evidence,  because  the 
Ecclesiastical  Court  has  no  control  over  devises  oflands.(/) 
When  also  the  will  remains  in  Chancery,  a  copy  of  it  will 
be  good  evidence.(ra)[7] 

If  a  subscribing  witness  should  deny  the  execution  of  the 
will,  he  may  be  contradicted  as  to  that  fact  by  another  sub- 
scribing witness  ;(n)  and  even  if  they  all  swear,  that  the 
will  was  not  duly  executed,  the  devisee  will  be  allowed 
to  go  into  circumstantial  evidence  to  prove  its  due  execu- 
tion.(o)[8]  So,  also,  if  one  of  the  subscribing  witnesses  im- 

(l)Doe,d.Jith,v.  Co/pert,  2  Campb.  (o)  Lowe  v.  Joltijfe,  W.  Blk.  366. 
389.  Pike  v.  Badmerine;,  cited  Stran.  1096. 

(m)    Eden  v.  ChaUcill,  1  Kcb.  117.      Gilb.  Evid.  69.  B.  N.  P.  264. 

(n)    Vidt   Alexander  v.  Gibson,  2 
Campb.  656. 


not  iMvr  in  evidence  the  declarations  of  A.  and  B.,  as  to  the  loss  of  the  deed 
from  B.  to  A  Jackson  v.  Cm,  1 1  Johns.  437. 

To  prove  the  loss  of  a  written  instrument,  search  and  inquiry  must  be  shown 
of  those  persons  who  would  have  the  paper  if  it  existed.  Jackson  v.  Frier. 
16  Johns.  193.  The  evidence  of  logs  is  matter  exclusively  for  the  considera- 
tion of  the  judge,  who  is  not  bound  by  the  rules  in  relation  to  testimony  to  a 
jury,  but  may  admit  the  evidence  of  an  interested  witness,  or  the  party  himself. 

The  same  observation  applies  to  the  proof,  that  a  subscribing  witness  to  a 
deed  could  not  be  found.  Ibid. 

In  regard  to  the  proof  of  16ss  of  instruments,  there  is  much  less  strictness 
with  regard  to  those  which  have  ceased  to  be  of  value  as  evidences,  and  mu- 
niments of  title,  than  to  those  which  have  not.  Jackson  v.  Root,  18  Johns.  60. 

[7]  The  record  of  a  will,  proved  in  open  court  under  the  statute,  (1  Rev. 
Laws,  N.  Y.  366.)  is  only  prima  facie  evidence  of  its  authenticity,  and  is  not 
conclusive  upon  the  heir,  so  as  to  prevent  the  admission  of  evidence  to  im- 
peach its  validity.  It  is  only  prima  facie  evidence  of  its  authenticity.  Jackton 
v.  Rumsey,  3  Johns.  Cas.  234. 

[8]  Parol  eridence  may  be  given  to  show  that  a  testator  executed  a  will 
under  duress,  but  the  declarations  of  a  testator,  though  made  in  extremis, 
are  inadmUsihle.  Jaektort  v,  Knitfcn.  2  John*  83. 


270  OF  THE  EVIDENCE 

peach  the  validity  of  the  will  on  the  ground  of  fraud,  and 
accuse  other  witnesses,  who  are  dead,  of  being  accomplices 
in  the  fraud,  the  devisee  may  give  evidence  of  their  gene- 
ral character,  (p) 

When  an  ejectment  is  brought  by  the  devisee  of  a  copy- 
holder, he  must  prove  the  admission  of  the  testator,  the 
surrender  to  the  use  of  the  will,  and  his  own  admittance. (9) 
And  these  facts  will  be  sufficiently  established,  by  produc- 
ing the  original  entries  on  the  rolls  of  the  manor  by  the  pro- 
per officer,  (which  entries  the  courts  will  compel  the  lord 
to  permit  his  tenant  to  inspector)  )  and  proving  the  identity 
of  the  parties  admitted  ;(s)  without  also  showing  a  copy  of 
such  surrender  and  admittances  stamped,  as  required  by 
the  stat.  55  Geo.  III.  c.  1 84.(/)  The  will  of  the  devisor  must 
likewise  be  proved  ;  but  as  copyhold  lands  are  not  within 
the  statute  of  frauds,  it  will  be  sufficient  to  show  a  will  in 
writing,(u)  although  it  be  neither  signed  by  the  testator, 
nor  attested  by  any  witnesses.(t>)  Indeed,  even  short  notes 
taken  by  an  attorney  for  the  purpose  of  drawing  up  a  will, 
where  the  party  died  before  the  will  could  be  completed, 
have  been  held  sufficient  to  pass  copyhold  premises. (zo) 

It  has  been  said,  that  any  paper,  which  the  Ecclesiastical 
Court  would  hold  to  be  a  will,  shall  be  sufficient  to  pass  a 
copyhold  previously  surrendered,(x)  and  it  is,  therefore, 


(77)  Doe,  d.  Walker,  v.  Slcphenson,  (t)  Doe,  d.  Bennington,  T.  Hall,  16 

3  Esp.  284.     S.  C.  4  Esp.  50.  East,  208. 

(?)  Roe,  d.  Jefferey,  v.  Hickt,    2  (u)  32  Hen.  VIII.  c.  1. 

Wils.  13.  Doe,  d.  Vernon,  v.  Vernon,  (t>)   JV«uA   v.  Edmunds,  Cro.  Eliz. 

7  East,  8  Jhile,  66.  100.     Doe,  d.   Cook,  v.   Danvers,  7 

(r)  Folkard  v.  Hemet,  W.  Blk.  1061.  East,  299. 

The  King  v.  Shelly,  3  T.  R.  141.  (u>)  1  Ander.  34.  8S. 

(*)   Doe,   d.  Hanson,  v.  Smith,   1  (*)  Carey  v.  Atktw,  2  Bro.  Cha. 

Oampb.  197.  Rep.  68. 


BY  DEVISEES.  271 

usual  to  produce  the  probate,  as  well  as  the  original  paper- 
writing  ;  but  this  probate  does  not  appear  to  be  necessary, 
for  it  seems  that  the  Courts  of  Common  Law  may  enter 
into  the  question,  whether  the  paper  amounts  to  a  will,  al- 
though no  probate  has  in  fact  been  granted,  (y) 

If  the  lessor  be  the  legatee  of  a  term  for  years,  he  must 
give  in  evidence  the  probate  of  the  will,  and  prove  the  as- 
sent of  the  executor  to  the  devise ;  for  where  a  person  de- 
vises either  specifically  or  generally,  goods  or  chattels, 
real  or  personal,  and  dies,  the  devisee  cannot  take  them 
without  the  assent  of  the  executors. (z)  He  must  also  prove 
the  title  of  his  testator,  and  show  that  he  had  a  chattel  and 
not  a  freehold  interest  in  the  premises  ;  because,  when  a 
party  dies  in  possession,  it  is  presumed  that  he  is  seised  in 
fee  until  the  contrary  is  shown. (a)  This  is  most  commonly 
done  by  the  production  of  the  lease :  but  in  a  late  case, 
where  the  lessor  put  in  an  answer  of  the  defendants  to  a  bill 
in  equity,  in  which  the  defendant  stated,  that  "  he  believed 
the  lessor  was  possessed  of  the  leasehold  premises  in  the  bill 
mentioned,"  it  was  held,  as  against  the  defendant,  suffi- 
cient evidence  that  the  interest  of  the  testator  was  only  a, 
chattel  interest.(i) 

When  an  ejectment  is  brought  by  a  personal  representa- 
tive, he  must  produce  the  probate  of  the  will,  or  letters  of 
administration,  or  the  book  of  the  Ecclesiastical  Court, 
wherein  they  are  entered,  in  addition  to  the  proof  of  his 
testator's  or  intestate's  title. (c) 


(.V)  Doe, A.  Smith,*.  SmM,Peake's        (6)    Doe,    d.    Digby,  T.    Steel,   8 
Evid.  456.  Campb.  1 15. 

(»)  1  Inst.  Ill  (a)  Anltt  73.  (r)   Garret  v.    Litter,   1    Ley.    26. 

(a)  Ante,  252.  Elden  v.  Keddell,  8  £ast,  187.  Coot 

B.  N.  T.  108. 


J?  J  OF  THE  EVIDENCK 

When  an  ejectment  is  brought  by  the  surrenderee  of 
copyhold  lands,  he  must  prove  the  surrender  to  his  use,  and 
his  subsequent  admittance  ;  but  it  is  immaterial  whether  the 
admittance  be  before  or  after  the  day  of  the  demise  in  the 
declaration. (J) 

When  the  lessor  of  the  plaintiff  is  the  lessee  for  years  of 
a  copyholder,  he  must,  after  proving  his  lessor's  title,  show 
either  a  special  custom  in  the  manor,  allowing  the  copy- 
holder to  make  leases  for  years,  or  that  the  licence  of  the 
lord  was  obtained  before  the  lease  was  granted. (e) 

When  an  ejectment  is  brought  by  a  tenant  by  elegit,  arid 
the  debtor  is  himself  in  possession  of  the  land,  the  only  evi- 
dence necessary  is  an  examined  copy  of  the  judgment  roll, 
containing  the  award  of  the  elegit,  and  return  of  the  inqui- 
sition. If,  however,  the  possession  is  in  a  third  person,  the 
lessor  must  either  show  that  such  third  person  came  into 
possession  under  the  debtor,  and  that  his  right  to  the  pos- 
session has  ceased,  or  (should  the  party  in  possession  hold 
adversely  to  the  debtor)  be  prepared  with  evidence  of  his 
debtor's  title,  (f)  It  is  not  necessary  in  any  case  to  prove 
a  copy  of  the  elegit  and  inquisition. (g) 

The  conusee  of  a  statute  merchant,  when  the  debtor  is 
in  possession,  must  prove  a  copy  of  the  statute,  of  the  capias 
si  laicus,  extent  and  liberate  returned ;  for  although  by  the 
return  of  the  extent  an  interest  is  vested  in  the  conusee,  yet 
the  actual  possession  of  that  interest  is  acquired  by  the  li- 
berate.^) The  same  proofs  are  also  necessary  when  a 

(d)  Antt,  66.  (g)  Ramsbottom  v.  Brickhurst,  2  M. 

(e)  Co.  Copy,  s.  61.  &.  S.  665. 

(/)  Doe,  d.  Da  Costa,  v.  Wharton,        (h)  Hammond  v.  Wood,  2  Salk.  668 
9  T.  R.  2 


BY  TENANTS  BY  ELEGIT,  &C.        273 

third  person  is  in  possession,  as  in  the  case  of  a  tenant  by 
clegit. 

When  a  parson  brings  ejectment  for  the  parsonage-house, 
glebe,  or  tithes,  he  must  prove  his  admission,  institution,  and 
induction  5(7)  but  he  need  not  show  a  title  in  his  patron,  for 
institution  and  induction,  although  upon  the  presentation  of 
a  stranger,  are  sufficient  to  put  the  rightful  patron  to  hie 
quare  impedit.(j) 

Proof  was  also  formerly  required  that  he  had  read  and 
subscribed  the  thirty-nine  articles,  according  to  the  statute, 
and  declared  his  assent  and  consent  to  all  things  contained 
in  the  book  of  Common  Prayer;  but  this  is  no  longer  held 
to  be  necessary,  unless  some  ground  be  laid  by  the  defen- 
dant to  show  that  he  has  not  complied  with  these  requisites ; 
because  the  presumption  is,  that  every  man  has  conformed 
to  the  law,  until  there  be  some  evidence  to  the  contrary. (k) 

Entries  made  by  a  deceased  rector  in  his  books,  may  be 
given  in  evidence  by  his  successor,(/)  upon  a  question  of 
tithes ;  and  he  is  also  entitled  to  give  in  evidence  such  ter- 
riers as  have  been  regularly  made  and  preserved  in  the  pro- 
per repository  ;  that  is  to  say,  such  terriers  as  are  signed  by 
a  churchwarden,  or  (if  the  churchwardens  are  nominated 
by  the  parson)  by  some  of  the  substantial  inhabitants  of  the 
parish,(w)  and  are  found  either  in  the  bishop's  register  of- 
fice,^*) or  in  the  registry  of  the  archdeacon  of  the  diocese.(o) 

(t)  Snow  v.  Phillips,  1  Sid.  220.  (m)  B.  N.  P.  248.  Earl  r.  Lcwit,  4 

(»  B.  N.  P.  105.  Esp.  3. 

(*)  Poteel  v.  Milburn,  3  Wils.  355.  (n)  Alkitu  v.  ITatton,  4  Gwill.  I40«. 
S.  C.  2  W.  Black.  851.  (o)  Potts  r.  Ditrant,  4  Gwill.  1460. 

(I)  Glyn  v.  Batik  of  England,  2  Vw.     1454. 
38.  43.     Roe,  d.  Hrunr,  v.  Kaiclingt, 
7  Eut,  270.  290. 

34 


1't  I  OF  THE  EVIDENCE 

It  is  not  necessary  that  the  terrier  should  be  signed  by  the 
parson ;  but,  unless  it  possesses  the  marks  of  authenticity 
above  mentioned,  it  cannot  in  general  be  received  in  evi- 
dence. But  where  a  terrier  was  found  in  the  registry  of  the 
dean  and  chapter  of  Litchfield,  it  was  admitted  in  evidence 
against  one  of  the  prebendaries  upon  the  principle,  that 
there  appeared  to  be  a  proper  connexion  between  the  ter- 
rier and  the  place  where  it  was  found. (p) 

An  ejectment  for  a  parsonage  and  glebe,  will  not  be  sup- 
ported by  showing  that  the  defendant  entered  and  took  the 
tithe  belonging  thereto  ;  because  the  tithes  and  the  rectory 
are  not  the  same. (q) 

When  a  lay  impropriator  brings  an  ejectment  for  tithes, 
the  strict  proof  of  title  is  to  show,  that  the  rectory  origi- 
nally belonged  to  one  of  the  dissolved  monasteries,  and 
was  granted  by  the  crown  to  those  under  whom  he  claims  ;(r) 
but,  as  deeds  and  instruments  are  liable  to  be  lost,  length 
of  possession,  and  old  deeds  conveying  tithes,  have  been 
deemed  sufficient  evidence  of  title. (s) 

When  an  ejectment  is  brought  by  a  guardian  in  socage, 
he  must  prove,  in  addition  to  the  title  of  his  ward,  that  he 
(the  ward)  is  under  fourteen  years  of  age  ;(<)  and  upon  the 
same  principle,  when  a  testamentary  guardian  is  the  lessor, 
he  must  show  the  age  of  his  ward  to  be  less  than  twenty- 
one  years. 

When  the  assignees  of  a  bankrupt  are  the  lessors  of  the 

(p)  Miller  v.  Foster,  4  Gwill.  1406.        (s)  Ktnaston  v.  Clarke,  5  T.  R.  266. 
(q)  Hem  v.  Stroud,  Latch.  61.  in  notit. 

(r)  Vide  Com.  661.  (/)  Doe,  d.  Rigge,  T.  Bell,  5  T.  R 

471. 


BY  JOINT  TENANTS,  &C.  275 

plaintiff,  they  must  give  evidence  of  the  assignment,  bank- 
ruptcy, &c.  in  the  same  manner,  and  subject  to  the  same 
rules,  as  in  other  actions. (M)  They  must  likewise  prove 
the  bankrupt's  title  to  the  premises  ;  and,  if  the  lands  are 
freehold,  the  bargain  and  sale,  and  enrolment  thereof  ;(i>) 
and  also,  if  his  title  accrued  after  his  bankruptcy,  a  spe- 
cial conveyance  of  them  by  the  commissioners  to  the  as- 
signees.(zo) 

Where  several  lessors  declare  upon  a  joint  demise,  proof 
of  a  joint  interest  in  the  whole  premises  must  be  given.[9] 
But,  if  a  demise  is  laid  by  each  of  several  lessors  separate- 
ly, they  will  be  entitled  to  recover,  whether  they  have  a 
joint  or  several  interest,  for  a  several  demise  severs  a  joint 
tenancy.(x)  And  in  a  case  where  a  joint  demise  was  laid 
by  seven  trustees  of  a  charity,  who  were  appointed  at  dif- 
ferent times,  and  the  tenant  had  paid  one  entire  rent  to  the 
common  clerk  of  the  trustees,  it  was  held  that  such  pay- 
ment of  rent  should  enure  in  the  most  beneficial  way  for 
the  trustees  in  support  of  their  title  as  brought  forward  by 
themsel«bs,  unless  the  defendant  expressly  proved  them  to 
be  entitled  in  a  different  manner.  And  it  was  considered 


(u)  49  Geo.  HI.  c.  121.  fjr)  Doe,  d    Afarsack,  v.  Read,  12 

(r>)  Egp.  N.  P.  431.  438.  East,  67. 

(w)  Ante  69. 


[9]  An  admission  contained  in  a  recital  of  a  deed  of  one  of  the  lessors,  in 
an  action  of  ejectment,  is  evidence  against  all  of  them,  as  he  could  not  be 
called  as  a  witness,  and  there  was  a  community  of  interest  among  them. 
Brandt  v.  Klein,  17  Johns.  336. 

A  deed,  containing  a  recital  of  another  deed,  is  evidence  of  the  recited  deed 
against  the  grantor,  and  all  persons  claiming  by  title  derived  from  him  sub- 
sequently. But  it  is  not  evidence  against  one  who  claims  from  him  by  title, 
prior  to  the  deed  containing  the  recital,  nor  is  it  evidence  against  a  stranger. 
Penrose  Y.  Griffith,  4  Binney's  Penn.  Rep.  231. 


276  OF  THE  EVIDENCE 

that  the  circumstance  of  their  being  appointed  at  different 
times  was  not  sufficient  evidence  for  that  purpose. (y) 

When  an  ejectment  is  brought  by  one  joint-tenant,  parce- 
ner, or  tenant  in  common,  against  his  companion,  the  lessor 
may  be  called  upon  to  produce  the  consent  rule,  and  if  it 
appear  that  a  special  one  has  been  granted,  that  the  de- 
fendant shall  confess  lease  and  entry  only,  the  lessor  must 
prove  an  actual  ouster  by  his  co-tenant  ;(z)  but  if  the  con- 
sent rule  be  in  the  common  form,  it  will  be  sufficient  evi- 
dence of  an  ouster.(a) 

Next,  of  the  proofs  required  when  a  privity  exists  be- 
tween the  defendant  and  lessor  of  the  plaintiff,  or  those 
under  whom  he  claims. 

'     ;'f'»*"-O..     •'  .  •    .     .-t     '    •'  •  •;;"  »  "    '    it*>     ',-  '  :._J. 

When  a  privity  exists  between  the  parties  to  the  eject- 
ment, the  claimant,  instead  of  proving  his  title,  should 
show  the  existence  and  termination  of  the  privity ;  for  a 
privity  will  not  be  presumed  to  exist  without  proof,  but 
being  proved,  the  presumption  is  in  favour  of  iL  continu- 
ance. Thus,  if  the  defendant  be  let  into  possession,  pend- 
ing a  negotiation  for  a  purchase  or  a  lease,  proof  must  be 
given  of  the  circumstances  under  which  he  was  let  into 
possession,  and  also  of  the  breaking  off  of  the  negotiation 
before  the  day  of  the  demise  in  the  ejectment.  In  like 
manner,  if  he  has  become  tenant  at  will  of  the  premises, 
the  lessor  must  show  how  he  became  so,  and  that  the  will 
was  determined  by  demand  of  possession  or  otherwise,  and 
«o  forth.(i) 

(y)  Doe,  d.  Clarke,  v.  Grant,  12        (a)  Doe.  d.  White,  v.  Cuff,  1  Campb. 
East,  221.  173. 

(»)  Ante,  §6.  (b)  Ante,  98.  1 1 1.— In  a  case,  where 

the  landlord  by  his  own  negligence, 


BY  JOINT  TENANTS,  &C.  27? 

When  the  relationship  of  landlord  and  tenant  regularly 
subsists  between  the  parties,  or  those  under  whom  they 
claim,  which  is  commonly  the  case  in  ejectments  of  this 
nature,  the  tenancy  may  be  determined,  as  we  have  al- 
ready observed,(c)  in  three  several  ways.  First,  by  the 
efflux  of  time,  or  the  happening  of  a  particular  event. 
Secondly,  by  a  notice  from  the  landlord  to  the  tenant  to 
deliver  up  the  possession,  or  vice  versa  ;  and,  thirdly,  by  a 
breach  on  the  part  of  the  tenant  of  any  condition  of  his 
tenancy,  as  by  the  non-payment  of  rent,  or  non-perform- 
ance of  a  covenant. 

When  the  tenancy  is  determined  by  the  efflux  of  time, 
the  lessor  has  only  tb  prove  the  counterpart  of  the  lease, (d) 
(for  which  purpose  he  must  call  one  of  the  subscribing 
witnesses,  if  capable  of  being  called,)  provided  the  demise 
be  by  deed,  or  the  agreement  by  some  person  present  at 
the  making  of  it,  if  it  be  by  parol :  and  it  is  not  necessary 
for  him  also  to  show,  that  he,  or  those  under  whom  he 
claims,  has  received  the  reserved  rent  within  the  last  twenty 
years. (e)[lj 

Where  the  tenancy  is  determined  by  the  happening  of  a 


suffered  a  third  person  to  recover  in  quarters  of  the  term  was  unezpired. — 

ejectment  against  his  tenant,  who  held  Baker  v.  Mellish,  10  Ves.  544.  ct  ride 

under  a  lease,  and  who  attorned  to  Due,  d.  Powell,  v.  King,  Forrest.  19 

such  third  person,  the  court  of  Chan-         (c)  .//;'•.  101. 

eery  restrained  the  tenant  from  set-         (d)  Roe,  d.  IVat,  v.  Davit,  7  East, 

ting  up  the  lease  against  an  ejectment  363. 

about  to  be  brought  by  his  landlord,        (e)   Orrell  v.  Maddox,  Runn.  Eject. 

although    only  one    year  and  three  Appendix,  458. 


[1]  If  the  validity  of  a  deed  depend  on  an  act  in  pais,  party  producing  it 
is  bound  to  show  the  performance  of  such  act.  Williams  v.  Peyton,  4  Whea- 
tort'iU.  S.  Rep.  77. 


278  OP  THE  EVIDENCE 

particular  event,  the  lessor  must,  of  course,  also  prove  that 
the  event  upon  which  the  tenancy  is  to  determine,  has 
happened. 

When  the  tenancy  expires  by  reason  of  a  notice  to  quit, 
the  lessor  must  prove  the  tenancy  of  the  defendant,  the 
service  of  the  notice  and  its  contents,  (and  if  given  by  an 
agent,  the  agent's  authority,)  and  that  the  notice  and  the 
year  of  the  tenancy  expire  at  the  same  time.  When  also 
the  notice  is  for  a  shorter  period  than  half  a  year,  or  ex- 
pires at  any  other  period  than  the  end  of  the  year  of  the 
tenancy,  it  will  be  necessary  to  show  the  custom  of  the 
country  where  the  lands  lie,  or  an  express  agreement,  by 
which  such  notice  is  authorized. (f) 

•*>.!'»'  <  n    '-'ii 

The  tenancy  of  the  defendant  is  commonly  admitted, 
and  may  be  proved  when  necessary,  if  no  direct  evidence 
can  be  given  of  the  demise,  by  declarations  on  the  part  of 
the  tenant,  the  fact  of  payment  of  rent,  (and  it  is  advisable 
to  give  the  tenant  notice  to  produce  his  receipts,)  or  the 
like.[2] 

The  service  of  the  notice,  and  the  authority  to  serve  it? 
(f)Antt,  131. 


[2]  A  deed  produced  at  the  trial  pursuant  to  a  notice,  by  a  party  to  the 
deed,  is  prima  facie  to  be  taken  to  be  duly  executed,  and  may  be  read  in  evi- 
dence without  proof  of  its  execution.  Belts  v.  Badger,  12  Johns.  223.  On 
this  subject  the  English  decisions  are  not  agreed.  See  2  T.  R.  44.  1  Etp. 
Rep.  409.  8  East,  648.  2  Camp.  Rep.  94. 

But  if  party  producing  be  not  a  party  to  the  deed,  then  evidence  of  its  exe- 
cution must  be  produced  by  the  party  calling  for  the  deed.  Jackson  v.  Kingi- 
ley,  17  Johns.  158  ;  and  the  circumstance  of  the  names  of  the  subscribing  wit- 
nesses being  torn  off,  will  not  exempt  the  party  from  the  necessity  of  proving 
the  hand-writing  of  the  party  who  executed  it,  there  being  no  evidence  tha1 
the  party  producing  the  deed  had  mutilated  it.  Ibid. 


BY  JOINT  TENANTS,    &C. 

will  be  proved  by  the  person  who  delivered  it  to  the  te- 
nant ;  but  if  there  is  a  subscribing  witness  thereto,  such  sub- 
scribing witness  must  also  be  called,  although  it  should 
happen  that  he  only  witnessed  the  signature  of  the  land- 
lord, and  did  not  deliver  the  notice  himself.  The  contents 
of  the  notice  may  be  proved  by  a  duplicate  original,  which 
should  be  compared  with  the  notice  actually  served,  by 
the  party  serving  it ;  but  if  this  precaution  is  not  taken, 
parol  evidence  may  be  given  of  its  contents  ;  and  it  is  not 
necessary  in  either  case,  to  give  the  defendant  notice  to 
produce  the  original  in  his  possession.(g) 

When  the  notice  is  given  by  an  agent,  it  must  be  shown 
that  he  was  vested  with  his  authority  at  the  time  the  notice 
was  given. (h)  And  where  two  or  more  joint  tenants,  &c. 
are  lessors  of  the  plaintiff,  and  a  notice  to  quit  is  given  by 
one  or  more  in  the  name  of  all,  although  they  all  afterwards 
join  in  an  ejectment,  it  will  not  be  presumed,  from  that 
circumstance,  that  an  authority  was  originally  given  by  the 
parties  not  joining  in  the  notice,  to  their  co-tenants. (t) 
But  where  a  notice  to  quit  was  given  by  the  steward  of  a 
corporation,  it  was  presumed,  inasmuch  as  he  was  an  officer 
of  the  corporation,  that  he  had  an  authority  to  give  the 
notice,  (j} 

When  the  tenant  has  been  long  in  possession  of  the 
premises,  it  frequently  becomes  extremely  difficult  to  prove 
the  time  of  his  original  entry  ;  but  nevertheless,  some  evi- 
dence must  be  given,  from  which  the  jury  may  presume 
that  the  time  of  the  expiration  of  the  notice,  and  of  the 

(g)  Jory  v.  Orchard,  2  B.  fa.  P.  41.        (j)  Roe,  d.  Dean  of  Rochesler,  r. 
(h)  Ante,  120.  Pearce,  2  Campb.  iH». 

(0  Right,  d.  Fisher,  r.  Cutheli,  5 
U»st,  491.    Ante,  120. 


280  OF  THE   KV  ll.K.Ni  I 

year  of  the  tenancy  are  the  same,  or  the  plaintiff  will  be 
nonsuited. 


If  the  tenant  has  heen  applied  to  by  his  landlord,  re- 
specting the  time  of  the  commencement  of  his  tenancy, 
and  has  informed  him  that  it  began  on  a  certain  day,  and, 
in  consequence  of  such  information,  a  notice  to  quit  on 
that  day  is  given  at  a  subsequent  period,  the  evidence  is 
conclusive  upon  the  tenant,  and  he  will  not  be  permitted  to 
prove  that,  in  point  of  fact,  the  tenancy  has  a  different  com- 
mencement :  nor  is  it  material  whether  the  information  be 
the  result  of  design  or  ignorance,  as  the  landlord  is  in  both 
instances  equally  led  into  an  error.(Ar)  When  also  the  te- 
nant, at  the  time  of  the  service  of  the  notice,  assents  to  the 
terms  of  it,  he  will  be  precluded  from  showing  that  it  ex- 
pires at  a  wrong  time.  But  such  .assent  must  be  strictly 
proved ;  and  in  a  case  where  the  party  made  no  objection 
to  the  notice  at  the  time  of  its  delivery,  but  said,  "  I  pay 
rent  enough  already,  it  is  hard  to  use  me  thus ;"  it  was 
held,  that  these  circumstances  were  not  sufficient  to  pre- 
vent him  from  showing  the  time  when  the  tenancy  actually 
commenced. (/) 

When  a  notice  to  quit  upon  any  particular  day,  is  served 
upon  the  tenant  personally,  if  he  read  its  contents,  or  they 
be  explained  to  him,  without  any  objection  being  made  on 
his  part,  as  to  the  time  of  the  expiration  of  the  notice,  it 
will  be  prima  facie  evidence  of  a  holding  from  the  day 
mentioned  in  the  notice.(m)  In  like  manner,  a  receipt  for 
a  year's  rent  up  to  a  particular  day,  is  prima  facie  evidence 

(k)   Doe,  d.  Eyre,  T.  Lambley,  2        (m)   Thomas,  d.  Jones,  v.    Tliomat. 

Esp.  635.  2  Campb.  647.      Dot,  d.  Clarges,  v. 

(/)   Oaknpple,  d.  Green,  v.  Copous,  Potter,  13  East,  405. 
4  T.  R.  361. 


BY  LANDLORDS.  281 

of  a  holding  from  that  day.(n)  But  if  the  notice  be  not 
delivered  personally,  or  be  not  read  over  or  explained  to 
the  party,  no  such  presumption  will  arise,  although  a  con- 
trary doctrine  was  formerly  maintained. (o)  When  also  the 
notice  is  to  quit  generally  at  the  expiration  of  the  current 
year  of  the  tenancy,  &.c.(p)  no  presumption  can  arise,  as 
to  the  time  of  the  commencement  of  the  tenancy,  from  a 
personal  delivery  to  the  tenant.  But  where  a  general  no- 
tice was  delivered  on  the  22d  of  March,  to  quit  at  the  ex- 
piration of  the  current  year,  &c.,  and  on  the  16th  of  Janu- 
ary following,  a  declaration  in  ejectment  was  delivered  to 
the  tenant,  laying  the  demise  on  the  1st  of  November,  and 
the  tenant  on  the  receipt  of  this  declaration  made  no  ob- 
jection to  the  notice  to  quit,  nor  set  up  any  right  to  the 
possession  of  the  premises,  but  said  he  should  go  out  as 
soon  as  he  could  suit  himself  with  another  house,  it  was 
ruled  by  Lord  Ellcnborough,  C.  J.,  that  the  defendant's 
declaration^  when  served  with  the  ejectment,  was  evidence 
to  go  to  the  jury,  whether  the  holding  was  a  Michaelmas 
holding,  and  the  jury  found  a  verdict  for  the  landlord. (7) 
And  in  a  case,  where  the  notice  was  delivered  on  Septem- 
ber 27,  to  quit  "  at  the  expiration  of  the  term  for  which 
you  hold  the  same,"  which  notice  was  served  personally 
upon  the  tenant,  who  observed,  "  I  hope  Mr.  M.  does  not 
mean  to  turn  me  out,"  Holroyd,  J.  permitted  the  lessor  to 
prove,  that  it  was  the  general  custom,  in  that  part  of  the 
county  where  the  demised  lands  lay,  to  let  the  same  from 
Lady-day  to  Lady-day,  and  that  the  defendant's  rent  wa» 
due  at  Michaelmas  and  Lady-day  respectively,  and  direct- 

(n)    Doe,  d.  Cattleton,  T.  Samuel,  6        (p)  Ante,  132. 
I'M-.  174.  (?)  Doe,  <l.  Batttr,  T.  Wtmbwdl,  "1 

(o)   Doe,  d.  Puddteombe,  T.  Harrit,    Catnpb.  559 
1  T.  R  161.    Doe,  d.  Mt,  v.  Calverl, 
2Campb.  887. 


282  OF  THE  EVIDENCE 

ed  the  jury  to  prr-ume,  Hut  (his  tenancy,  like  other  tenan- 
cies in  that  part  of  the  country,  was  a  tenancy  from  L;ul\- 
day  to  Lady-day. (r) 

When  the  ejectment  i>  brought  upon  a  clause  of  re-entry 
for  non-payment  of  rent,  if  the  proceedings  are  at  common 
law,  the  lessor  must  prove  the  lease  or  counterpart,^)  and 
that  the  rent  has  been  demanded  with  all  the  formalities 
mentioned  in  a  preceding  chapter.(/)  If  the  case  falls 
within  the  provisions  of  the  statute  4  Geo.  II.  c.  28.  instead 
of  proving  a  demand  of  rent,  he  must  show  that  H\  months 
rent  is  in  arrear,  and  that  there  is  not  a  sufficient  distress 
upon  the  premises. (w)  In  order  to  prove  the  latter  fact, 
evidence  must  be  given  that  every  part  of  the  premises 
has  been  searched  ;  and  in  a  case  where  a  party  who  was 
about  to  make  the  distress,  omitted  to  enter  a  cottage  upon 
the  premises,  the  Court  considered  the  search  insufficient. (p) 
But  where  the  rent  was  payable  on  the  25th  of  March,  with 
a  proviso,  that  the  right  of  re-entry  should  accrue,  if  the 
rent  remained  unpaid  by  the  space  of  fourteen  days  next  af- 
ter it  became  payable,  and  the  lessor  proved  that  there  was 
no  distress  upon  the  premises  some  day  in  May,  (the  demise 
being  laid  on  May  2.)  the  Court  held  this  to  be  sufficient 
prima  facie  evidence  to  call  upon  the  defendant  to  show, 
that  there  was  sufficient  distress  upon  the  premises  within 
the  terms  of  the  proviso. (a;) 

When  the  ejectment  is  for  the  breach  of  any  other  co- 
venant, the  lessor  must  show  the  covenant  broken,  by  the 


(r)  Doe,  A.  Mines,  v.  Larnb,  Not-  (n)  Ante,  150. 

n-lMin  Summer  Assi/.os,  1817— MS.  (r)  Doe,  d.  Powell,  v '.  King,  For- 

(t)  Roe,  d.    Wtst,  v.  Data,  7  Eust,  rest.  19. 

6tf.  (IP)  Doe,  d.   Smelt,  v.   Furhnn.  1* 

(0  Jnte,  149.  East,  286.    ' 


OF  MORTGAGEES.  283 

same  evidence  as  in  an  action  of  covenant ;  arid  if  he  has 
been  ordered  by  the  Court  to  give  to  the  tenant  particulars 
of  the  breaches  upon  which  he  means  to  rely,  he  will  be 
precluded  from  giving  in  evidence  different  breaches  from 
those  contained  in  the  particulars.  In  a  case  where  the 
c  ;<•(  tment  was  upon  a  proviso  for  re-entry  if  the  lessee  should 
assign  or  underlet,  it  was  ruled  by  Lord  Al-canley,  C.  J.,  that 
if  a  person  was  found  in  possession,  acting  and  appearing  as 
tenant,  it  was  sufficient  prima  facie  evidence  of  an  underlet- 
ting, to  call  upon  the  defendant,  (the  lessee,)  to  show  in 
what  character  such  person  was  upon  the  premises  ;  and 
that  the  declarations  of  such  person  were  admissible  in  evi- 
dence against  the  lessee. (x) 

If  the  claimant  is  the  assignee  of  the  reversion,  after  prov- 
ing the  forfeiture,  evidence  must  be  given  that  he  was  en- 
titled to  the  reversion  at  the  time  the  forfeiture  was  com- 
mitted,^) and  if  possible,  of  the  mesne  assignments  from  the 
original  lessor.  These  mesne  assignments,  however,  will 
be  presumed,  if  the  original  lease  be  for  a  long  term,  and 
the  possession  of  the  assignee  have  continued  for  a  consi- 
derable time.(z) 

When  the  ejectment  is  brought  for  the  forfeiture  of  a 
mortgage,  if  the  mortgagor  is  the  defendant,  the  mortgage 
deeds  are  the  only  evidence  required,  because  a  man  can- 
not set  up  any  title  incon.-i>ieiil  with  his  own  deed.  And  if 
the  ejectment  be  against  a  third  person,  who  holds  the  mort- 
gaged lands  as  tenant  to  the  mortgagor,  or  mortgagee,  it  will 
be  only  necessary  in  addition  to  the  proof  of  the  mortgage 
deeds,  to  give  evidence  of  such  tenancy,  and  either  of  its 

(r)  Doe,  d.  Hinrf/ey,  v.  Rirkarby,  5         (*)    Earl,  d.    Go<l>cin:    v.    Baxter, 
Esp.  4.  \\..  Black.  1228. 

(y)  .Me,  74. 


284  OF  THE  EVIDENCE 

regular  determination,  or  of  the  mortgagor  himself  having 
been  in  possession  of  the  lands  at  the  time  of  the  mortgage, 
and  of  the  tenancy  heing  unacknowledged  by  the  mortga- 
gee.^) If,  however,  such  third  person  hold  the  lands  by 
a  title  adverse  to  that  of  the  mortgagor,  evidence  of  the 
mortgagor's  title  will  of  course  be  required. 

When  the  lord  of  a  manor  brings  an  ejectment  for  a  for- 
feiture, he  must  prove  that  he  was  lord  at  the  time  of  the 
forfeiture  committed,  and  that  the  person,  who  is  alleged  to 
have  committed  the  forfeiture,  has  been  admitted  tenant 
on  the  rolls  of  the  manor.  Proof  of  the  admittance  of  the 
father,  and  of  the  descent  to  the  copyholder  as  son  and 
heir,  and  payment  of  quit-rents  by  him,  will  not  be  suffi- 
cient evidence :  the  tenant  must  be  himself  admitted,  for 
nothing  vests  in  a  copyholder  which  he  can  forfeit,  before 
admittance  and  entry.  The  act  of  forfeiture  must  of  course 
also  be  proved  ;  but  proof  is  not  required  of  the  present- 
ment of  the  forfeiture,  nor  of  the  entry,  or  seisure,  of  the 
lord.(6) 

When  the  lord  seises  the  land  as  forfeited  pro  defectu  ie- 
nentis,  if  he  seise  absolutely,  he  must  prove  a  special  cus- 
tom in  the  manor  entitling  him  to  do  so ;  but  if  he  seise 
only  quousque,  the  custom  need  not  be  proved,  and  an  abso- 
lute seisure  unwarranted  by  the  custom,  cannot  afterwards 
be  set  up  as  a  seisure  quousque.(c}  He  must  also  prove, 
that  the  regular  proclamations  have  been  made,  and  in  one 


(a)  Ketch  v.  ffatt,Doug.  21.  Than-  11  East,  56.     B.  N.  P.  108.  el  vide 
ier,  d.    Wearer,   v.    Rtlcfter,  3  East,  Walk.  Copy.  v.  i.  324.  to  353. 

449.      Bircli  v.  WriglU,  1  '£.  R.  378.         (c)  Lord  Salisbury'!  case,  1  Lev.  63. 

Ante,  106.  S.  C.  1  Keb.  287.    Doe,  d.   Tanant. 

(b)  Roe,    d.  Jeffrey*,  v.  Hickt,  2  v.  Hellier,  3  T.R.  Id2. 
WU8.  la      Doe,  d.  Foley,  v.  Wiimn, 


BY  THE  DEFENDANT.  285 

report  of  Lord  Salisbury's  case,  it  is  said,  that  the  procla- 
mations must  be  proved  by  rt'ra  xoce  evidence,  and  that  the 
entry  thereof  on  the  Court  rolls  is  not  sufficient  ;(r/)  but  no 
mention  is  made  of  this  point  in  another  report  of  the  same 
case,(<)  nor  does  it  appear  in  a  late  similar  decision,  that 
any  evidence  of  this  nature  was  required.(/) 

A  lord  of  a  manor  cannot  maintain  ejectment  for  mince 
upon  his  manor,  without  proof  that  he  has  been  actually 
possessed  of  them  within  the  last  twenty  years ;  because 
they  are  a  distinct  possession  from  the  manor,  and  may  be 
of  different  inheritances. (g)  And  a  verdict  in  trover,  for 
lead  dug  out  of  them,  will  not  be  evidence  of  the  possession 
of  the  mines  ;  for  trover  may  be  brought  on  property  with- 
out possession.(A) 

The  doctrine  of  presumption  extends  to  copyhold  lands, 
and  upon  proper  evidence  an  enfranchisement  of  them  may^ 
be  presumed  even  against  the  crown. (i) 

Secondly,  Of  the  evidence  on  the  part  of  the  defen- 
dant. 

The  principle  that  a  claimant  in  ejectment  must  recover 
on  the  strength  of  his  own  title,  is  now  so  clearly  establish- 
ed that  little  can  be  said  respecting  the  evidence  necessary 
on  the  part  of  the  defendant.  The  lessor  of  the  plaintiff 
must  always,  in  the  first  instance,  make  out  a  clear  and  sub- 
stantial possessory  title  to  the  premises  in  question ;  and 
the  defendant's  evidence  is  altogether  confined  to  falsifying 

(<J)  1  Keb.  287.  (g)  R.rA  v.  Johnton,  Stran.  1142, 

(e)  1  Lev.  63.  (h)  B.  N.  P.  102. 

(/)  Doe,  d.  Tarrant,  v.  Hcliier,  3  (i)  Roe,  d.  Jofuuon,  T.  Irelmtd^  1 1 
T.  R  163.  Ea*t,  280. 


286  OF  THE  EVIDENCE,    &C. 

his  adversary's  proofs,  or  rebutting  the  presumptions  which 
may  arise  out  of  them.  He  needs  not  show  that  he  has 
himself  any  claim  whatever  to  the  premises,  nor  even  give 
evidence  of  a  title  in  a  third  person ;  it  is  sufficient  if  he 
make  it  appear  to  the  jury,  that  a  legal  and  possessory  title 
does  not  subsist  in  the  plaintiff's  lessor.  Thus,  when  the 
lessor  claims  as  heir,  he  may  show  a  devise  by  the  ancestor 
to  a  stranger;  that  by  a  particular  custom  another,  and  not 
the  claimant,  is  the  heir ;  that  the  claimant  is  a  bastard  ;  or 
any  other  circumstances  which  will  invalidate  his  title.  In 
like  manner,  when  the  lessor  claims  as  devisee,  the  defen- 
dant may  show  that  the  will  was  obtained  by  fraud ;  that  it 
was  not  duly  executed ;  that  the  testator  was  a  lunatic  ;[3] 
that  the  lands  (if  copyhold)  had  not  been  properly  surren- 
dered; and  so  forth.  And  as  the  same  principle  holds, 
whatever  be  the  title  of  the  claimant,  any  particular  direc- 
tions respecting  the  defendant's  proofs  are  altogether  unne- 
cessary. It  is  sufficient  to  observe  generally,  that  the  de- 
fendant's evidence  entirely  depends  on  the  nature  of  the 
proofs  advanced  by  the  plaintiff's  lessor,  and  needs  in  no 
case  to  be  extended  beyond  the  rebuttal  of  them. [4] 


[3]  The  sanity  of  a  testator  is  presumed  until  the  contrary  appears  ;  but  if 
a  mental  derangement  has  been  proved,  it  is  then  incumbent  on  the  devisee 
to  show  a  lucid  interval  at  the  time  of  executing  the  will.  Jackson  v.  Van- 
deusen,  5  Johns.  144. 

Evidence  of  an  opinion  expressed  by  a  devisee,  that  a  testator  was  not  of 
sound  mind,  is  inadmissible  to  show  his  insanity,  when  other  devisees  claim 
under  the  same  will.  Phelps  v.  Harlwell,  1  Mass.  Rep.  71. 

The  subscribing  witnesses  to  a  will  may  testify  as  to  the  opinion  they  form- 
ed of  the  testator's  mind  at  the  time  of  executing  the  will.  Poole  v.  Richard- 
ton,  3  Mass.  Rep.  330.  But  other  witnesses,  whether  professional  men  or 
others,  cannot  state  their  opinions,  unless  they  state  particular  facts  on  which 
their  opinions  are  predicated.  Dickinson  v.  Barber,  9  Mass.  Rep.  225.  Buck- 
mintter  v.  Perry,  4  ibid.  593.  Hailwm  v.  King,  8  ibid.  371. 

[4]  Before  dismissing  the  subject  of  evidence  in  ejectment,  it  may  be  of 
use  to  the  student  to  state  how  far,  by  our  decisions,  parol  testimony  is  ad- 


287 
CHAPTER  XI. 

OF  THE  TRIAL  AND  SUBSEQUENT  PROCEF.DI.Nr.S. 


THE  claims  of  the  several  parties  being  prepared  for  tlu 
decision  of  a  jury,  by  means  of  the  fictions,  conditions  and 


tnissihle  to  explain  those  written  instruments  which  are  generally  the  evi- 
dences of  title  in  this  action. 

Parol  evidence  is  admissible  to  explain  a  latent  amhiguity,  but  will  not  be 
received  to  explain  a  patent  ambiguity.  Mann  v.  Mann,  14  Johns.  1. 

Parol  evidence  is  inadmissible  to  contradict  the  effect  of  a  deed,  or  to  ex- 
plain any  patent  ambiguity,  but  it  may  be  received  to  explain  latent  ambigui- 
ties, ex.  gr.  the  land  and  monuments  may  be  located  by  parol.  Paine  v. 
M'Inlier,  1  Mass.  Rep.  69.  Revere  v.  Leonard,  ib.  91.  Walson  v.  Boylston,  5 
ib.  411.  Storer  v.  Freeman,  6  ib.  435.  King  v.  King,  1  ib.  496.  Albte.  v.  Ward, 
8  ib.  83.  Toicnsend  v.  Wild,  8  ib.  146. 

Parol  evidence  is  inadmissible  to  show  that  an  execution  bad  been  with- 
drawn, and  the  levy  abandoned,  in  contradiction  to  the  sheriff's  deed.  Jack- 
son v.  Babcock,  17  Johns.  167. 

Parol  evidence  is  inadmissible  to  show  that  a  boundary  Hue  is  incorrectly 
described  in  a  deed.  Jackson  v.  Bowen,  1  Caiues'  Rep.  358. 

Evidence  of  usajje  cannot  be  received  to  explain  a  deed  that  is  neither  am- 
biguous nor  equivocal.  Corttlyou  v.  Van  Brundt,  2  Johns.  357. 

But  where  an  ancient  deed  was  equivocal,  the  usage  of  the  parties  was  ad- 
mitted to  explain  it.  Livingston  v.  Ten  Broeck,  16  Johns.  14.  Codnian  v. 
Winslole,  10  Mass.  Rep.  146. 

Parol  evidence  is  inadmissible  to  show  that  part  of  the  premises  contained 
in  a  deed  were  intended  to  be  excepltxl.  Jackson  v.  Croy,  12  Johns.  4-27. 

It  cannot  be  admitted  to  show  that  a  lc;tM',  in  the  name  of  one  person,  was 
intended  for  the  benefit  of  another.  Jackson  v:  Foster,  12  Johns.  490. 

Parol  evidence  was  received  to  show  that  a  patent  t»  Darid  Hungcrford 
was  intended  for  Danitl  Hungerford.  Jackson  v.  Stanley,  15  Johns.  1 

Hut  in  this  case,  by  a  subsequent  legislative  act,  Daniel  Hungcrford  wus 
declared  to  be  the  person  intended.  Ibid. 

In  JacJaon  v.  Lmclon,  (10  Johns.  23.)  it  »  as  held,  that  parol  evukncc  could 


OF  TliC  TRIAL. 

proofs,  described  in  the  preceding  chapters,  the  trial  with 
its  incidents,  and  the  subsequent  proceedings,  will  now  oc- 
cupy our  attention. [5] 

The  death  of  the  lessor  of  the  plaintiff,  although  he  be 
only  tenant  for  life,  will  not  abate  the  action,  nor  can  it  be 
pleaded  puis  darrien  continuance  ;  because  the  right  is  sup- 
posed to  be  in  his  lessee,  (the  plaintiff,)  who  may  proceed 
for  the  damages  occasioned  by  the  supposed  ouster,  although 
he  cannot  obtain  possession  of  the  land  5(7)  but  a  trial  of 

(jf)  Thrustout,  d.  Turner,  v.  Grey,  Stran.  1056. 


not  he  given,  that  a  prior  patent  was  issued  to  A.  by  mistake,  until  it  was 
avoided  in  a  regular  manner  by  scire  facias. 

Where  a  patent  has  been  granted  to  George  Houseman,  but  George  Hosmer 
was  the  grantee  intended,  this  is  not  such  a  latent  ambiguity  as  will  autho- 
rize the  admission  of  parol  evidence  to  explain  the  patent.  (Thompson,  J.,  dis- 
senting.) Jackson  v.  Hart,  12  Johns.  77. 

A  deed,  purporting  to  be  an  absolute  conveyance,  cannot  be  avoided  by 
parol  evidence  of  usury,  or  of  any  trust  or  condition  not  expressed  in  such 
deed.  Flint  v.  Sheldon,  13  Mass.  Rep.  443. 

The  courts  of  Massachusetts  have  ruled,  that  parol  evidence  is  admissible 
to  aid  the  construction  of  a  conveyance,  so  far  as  to  prove  the  state  of  facts 
existing  at  the  time  of  the  conveyance.  Lcland  v.  Stone,  10  Mass.  Rep  469. 
Fowle  v.  Bigelow,  10  Mass.  Rep.  379. 

The  declarations  of  a  grantee  cannot  be  admitted  to  show  that  land,  in- 
cluded in  a  conveyance,  was  not  so  intended  by  the  parties.  Paine  v.  M-liiiier. 
1  Mass.  Rep.  69. 

[5]  The  Court  bas  no  power  to  compel  the  defendant  to  consent  to  a  sur- 
vey of  the  premises  in  his  possession.  Jackson  v.  Hogrboom,  9  Johns.  83. 

But  where  plaintiff  refuses  to  permit  a  survey  to  be  made,  the  Court  will 
stay  proceedings,  or  the  judge  at  the  circuit  will  postpone  the  trial  until  he 
does  consent.  Jackson  v.  Murphy,  3  Caines'  Rep.  82. 

To  supersede  the  necessity  of  a  view ,  it  seems  the  Supreme  Judicial  Court 
of  Massachusetts  have  adopted  the  practice  of  having  a  plan  taken  under  rule 
of  court,  by  a  sworn  surveyor  and  chain-bearers,  who  arc  to  give  notice  to 
th.-  parties  of  the  execution  of  their  trust.  Gerrish  v.  Bearce,  11  Mass.  Rep 
193. 


OI1    THE  TRIAL.  289 

tliis  nature  is  unknown  in  practice,  for  the  damages  in  eject- 
ment are  only  nominal,  and  if  the  plaintiffbe  nonsuited  from 
the  refusal  of  the  defendant  to  appear  at  the  trial,  the  exe- 
cutor of  the  lessor  will  not  be  entitled  to  his  costs,  for  the 
consent  rule  is  merely  personal. (/c) 

When  the  defendant  refuses  at  the  trial  to  confess  lease, 
entry,  and  ouster,  the  plaintiff  must  be  called  and  nonsuited, 
and  the  cause  of  the  nonsuit  specially  indorsed  upon  the 
postea;  and  the  lessor  of  the  plaintiff  will  then  be  entitled 
to  have  judgment  entered  against  the  casual  ejector.(/) 
With  respect,  however,  to  the  time  of  entering  this  judg- 
ment, a  considerable  difference  prevails  between  the  prac- 
tice of  the  Court  of  King's  Bench,  and  of  the  Common 
Pleas :  the  judgment  being  signed,  and  the  execution  taken 
out,  in  the  latter  court,  immediately  after  the  entering  of 
the  nonsuit,  and,  in  the  former,  not  until  the  day  in  bank 
when  the  postea  is  returned.(m) 

It  is  to  be  regretted  that  two  of  the  superior  courts  of 
the  kingdom  should  differ  upon  a  point  so  essential  to  the 
regular  administration  of  justice  ;  but  it  is  not  easy  to  de- 
cide which  is  the  more  eligible  mode  of  proceeding.  By 
the  practice  of  the  Court  of  Common  Pleas,  a  more  early 
possession  is  given  to  the  plaintiff  (in  some  cases  of  nearly 
four  months;)  and  this  seems  a  just  punishment  upon  the 
defendant,  for  refusing  to  perform  his  previous  promise ; 
whilst,  on  the  other  hand,  it  is  said  by  the  Court  of  King's 
Bench,  that  the  defendant  may  possibly  have  some  good 
reason  for  not  confessing,  as,  for  example,  want  of  due  no- 


(k)  Thru3tovl  v.  Berlirell,  2  Wiln.  7.        (HI)  Doe,d.  Palmerston,*.  Coptland, 
(/)  Turner  v.  Barnnby,  balk.  269.    et  Throginorton,  d.  Fairfax,  v. 
Appen.  No.  S3.  ley,  2  T.  R  779. 

87 


290  OF  THE  TRIAL. 

tice  of  trial,  and  that  it  is  but  fair  he  should  have  an  oppor- 
tunity of  assigning  such  reason  to  the  Court. 

If  the  defendant  refuse  to  appear,  the  proceedings  are 
the  same  whether  he  be  tenant  or  landlord  ;  and  the  motion 
for  judgment  against  the  casual  ejector,  on  a  nonsuit  for 
want  of  appearance,  is  absolute  in  the  first  instance. (n) 

If  there  be  several  defendants,  and  some  of  them  refuse 
to  appear  and  confess,  it  is  the  practice  to  proceed  against 
those  who  do  appear,  and  enter  a  verdict  for  those  who  do 
not,  endorsing  upon  the  posted,  that  such  verdict  is  entered 
for  them,  because  they  do  not  appear  and  confess  ;  and  the 
plaintiff's  lessor  will  then  be  entitled  to  his  costs  against 
such  defendants,  and  to  judgment  against  the  casual  ejector 
for  the  lands  in  their  possession. (o) 

If  there  be  any  material  variance  between  the  issue  and 
the  record,  it  seems  that  the  defendant  should  nevertheless 
appear  at  the  trial,  and  afterwards  move  the  Court  to  set 
aside  the  verdict  for  the  variance ;  because  if  he  do  not 
appear,  he  is  out  of  court,  and  cannot  afterwards  properly 
move  to  set  aside  the  nonsuit ;  yet,  upon  a  motion  of  this 
nature,  the  Court  did,  in  one  case,  grant  the  rule  upon 
payment  of  costs,(/>)  and  in  another  case  staid  the  pro- 
ceedings.^) 


(n)  Styles,  d.   Redhead,  v.   Oalcts,  the  demise,  he  could  not  maintain  bis 

Barn.   182.     Fenn,   d.  Rickaltson,  v.  declaration.     The    present    practice 

Marriott,  Barn.  185.  was  adopted  in  the  reign  of  William 

(o)  Claxmore  v.  Searle,  Ld.  Rayro.  III.     (Haddock's  case,  1  Vent.  365.) 

729  B.  N.  P.  98.    Formerly,  if  some  Fogg  v.  Ruberts,  2  Vent.  196 

of  the  defendants  did  not  appear,  the  (p)  Jones,  d.   Thomas,  v.  Hengest, 

plaintiff  was  nonsuited  as  to  all ;  be-  Barn.  175. 

cause  all  the  defendants  not  admitting  (4)  Law  v.  U'allis,  1  Barn.  156. 


OF  THE  TRIAL  AT  BAR. 


291 


In  a  case  where  the  demise  was  laid  on  a  day  not  come 
at  the  time  of  the  trial,  the  defendant  was  notwithstanding 
obliged  to  confess,  as  the  plaintiff  would  otherwise  have 
been  nonsuited,  and  have  been  entitled  to  judgment  against 
the  casual  ejector.(r)[6] 

If  the  property  litigated  be  of  great  value,  and  difficul- 
ties are  likely  to  arise  in  the  course  of  the  trial,  the  Court 
will  grant  a  trial  at  bar ;  and  the  motion  for  this  purpose 
may  be  made  by  either  party.  But  the  mere  value  of  the 
premises,(s)  or  the  probability  of  a  protracted  trial,  will 
not  be  sufficient  to  induce  the  Court  to  grant  the  applica- 
tion ;  difficulty  must  concur ;  and,  therefore,  the  motion 
must  be  supported  by  an  affidavit,  stating  "  the  value  per 
annum  of  the  estate  ;  that  many  witnesses  are  to  be  pro- 
duced on  each  side  ;  that  the  title  of  the  lessor  of  the  plain- 
tiff will  depend,  as  the  case  may  be,  on  an  intricate  course 
of  descent,  or  the  legal  operation  of  deeds ;  that  various 
points  of  law,  and  other  questions,  will  necessarily  arise  at 
the  trial ;  and  that  the  cause,  therefore,  should  be  tried  at 
the  bar  of  the  Court,  by  a  special  jury  of  the  county  where 
the  estate  lies,  if  the  Court  shall  so  think  fit,  and  not  before 
any  one  judge  of  assize." 


(r)  Anon.  Ld.  Raym.  728.  el  Sma//,        (*)  Lorrf  Sandwich's  case,  Salk.  648. 
d.  Baker,  v.  Cole,  Burr.  1169. 


[6]  In  ejectment  brought  oa  the  forfeiture  of  a  lease,  the  Court  will  com- 
pel the  plaintiff  to  deliver  a  bill  of  particulars  of  the  breaches  of  the  covenant 
on  which  he  intends  to  rely.  So,  if  the  plaintiff  declare  geneially  in  rjrct- 
tnent,  and  the  defendant  have  any  doubt  what  lands  the  plaintiff  means  to 
proceed  for,  he  may  call  upon  him  by  a  judge's  order  to  specify  them.  And, 
on  the  other  hand,  the  plaintiff  may  call  OD  the  defendant  to  specify  for  what 
he  defends,  when  that  is  not  ascertained  by  the  consent  rule.  Doe  v.  Hull. 
7  Term  Rep.  332.  n.  (a.)  Tidd's  Pract.  Vol.  1.  636. 


292  OF  THE  TRIAL  AT  BAR. 

It  has  been  said,  that  the  rule  is  not  to  allow  a  trial  at 
bar  in  ejectment,  unless  the  value  of  the  lands  be  a  hun- 
dred pounds  p<  r  annum  ;(<)  and  in  some  authorities  it  is 
laid  down,  that  it  is  not  sufficient  to  swear  generally,  that 
the  cause  is  expected  to  be  difficult,  but  that  the  particular 
difficulty,  which  is  expected  to  arise,  ought  to  be  pointed 
out,  to  enable  the  Court  to  judge  whether  it  be  sufficient.(w) 
And,  in  a  recent  case,  the  Court  refused  a  trial  at  bar,  on 
the  mere  allegation  of  length,  and  probable  questions  of 
difficulty  in  a  cause  respecting  a  pedigree. (T) 

In  other  actions,  a  rule  for  a  trial  at  bar  is  never  granted 
before  issue  joined ;  but  as  the  issue  in  ejectment  is  very 
seldom  joined  until  after  the  end  of  term,  when  it  would  be 
too  late  to  make  the  application,  the  motion  in  this  action 
may  be  granted  even  before  appearance. (tw) 

As  the  granting  of  a  trial  at  bar  is  a  favour  conferred 
upon  the  applicant,  the  courts  exercise  the  power  of  annex- 
ing equitable  conditions  to  their  grant.  Thus,  where,  on 
an  application  made  by  the  defendant  for  a  trial  at  bar,  it 
appeared,  on  showing  cause  against  the  rule,  that  the  lessor 
of  the  plaintiff  was  unable  to  bear  the  expense,  and  that 
one  of  his  witnesses  was  above  eighty  years  of  age,  who 
might  die  before  a  trial  at  bar  could  be  had.  The  Court 
granted  the  application,  but  said,  that  as  it  was  a  favour 
asked  by  the  defendant,  they  would  lay  him  under  terms, 
that  if  he  succeeded,  he  should  only  have  nisi  prius  costs, 
but  if  the  lessor  of  the  plaintiff  were  to  succeed  he  should 
have  bar  costs,  and  that  the  old  witness  should  be  examined 

(f)  GoodrighJ  v.  Wood,  I  Barn.  141.  (r)  Tidd,  768. 

(u)  Rex  v.  Burgessts  of  Caermar-  (w)  Roe,  d.   Cholmondlcy,  v.  Doe, 

then,  Say,  79.  2  Lil.  P.  R.  740.    Good-  Barn.  466. 
right  v.  Wood,  1  Barn.  141. 


OF  THE  NEW  TRIAL.  293 

on  interrogatories,  and  her  deposition  read,  if  she  should 
die  before  the  trial.  It  was  also,  by  consent,  made  part 
of  the  rule,  that  the  cause  should  be  tried  by  a  Middlesex 
jury,  instead  of  one  from  Norfolk,  where  the  premises  were 
situated. (x)  And,  in  another  case,  where  the  lessor  of  the 
plaintiff  had  had  a  rule  for  a  trial  at  bar,  but  having  laid 
the  demise  by  a  wrong  person,  had  discontinued  the  ac- 
tion, and  brought  a  new  ejectment ;  the  Court  would  not 
grant  him  a  second  rule  for  a  trial  at  bar  until  he  had  paid 
the  costs  of  the  former  ejectment.(i/) 

After  verdict,  the  successful  party  is,  of  course,  entitled  to 
the  judgment  of  the  Court ;  but  the  same  time  is  allowed 
to  the  other  party  to  move  for  a  new  trial,  or  an  arrest  of 
judgment,  in  ejectment,  as  in  other  actions.[7] 

The  courts  will  seldom  grant  a  new  trial  in  ejectment, 
when  the  verdict  is  given  for  the  defendant,  because  all 
parties  remaining  in  the  situation  they  were,  previously  to 
the  commencement  of  the  action,  the  claimant  may  bring 
a  second  ejectment  without  subjecting  himself  to  additional 
difficulties  ;  but  this  principle  does  not  apply  when  the 
verdict  is  given  against  the  defendant.  The  possession  is 
then  changed.  The  defendant  in  the  first  ejectment  be- 
comes the  plaintiff's  lessor  in  the  second,  and  is  obliged 
to  give  evidence  of  his  own  title,  instead  of  merely  rebut- 
ting the  claim  set  up  by  his  opponent ;  and  as  this  is  a  point 

(x)  rtotmti,  tl.  £rotcn7  T.  Brown,  (y)  Lord  Coningsby's  case,  Stran. 
Doug.  437.  648. 


[7]  The  Supreme  Court  of  Pennsylvania  have  ruled,  that  two  verdicts  the 
same  « a\  in  ejectment  are  no  l>ar  to  a  new  trial,  where  there  is  ground  to 
apprehend  that  the  jury  have  erred,  and  that  the  statute  of  limitations  wouM 
dpfrnt  a  nen-  unit,  tente  »f MHthf.ll  v.  Mitchell,  4  Bin.  180. 


294  OF  THE   JUDGMENT. 

of  material  consequence  to  him,  "  the  courts  (to  use  Lord 
Mansfield's  words)  rather  lean  to  new  trials  on  behalf  of 
defendants  in  case  of  ejectments,  especially  on  the  footing 
ef  surpri8e."(z) 

OF  THE  JUDGMENT. 

By  the  judgment  in  ejectment,  the  plaintiff's  lessor  ob- 
tains possession  of  the  lands  recovered  by  the  verdict,  but 
does  not  acquire  any  title  thereto,  except  such  as  he  pre- 
viously had.  If,  therefore,  he  have  a  freehold  interest  in 
them,  he  is  in  as  a  freeholder;  if  he  have  a  chattel  interest, 
he  is  in  as  a  termor ;  and  if  he  have  no  title  at  all,  he  is  in 
as  a  trespasser,  and  liable  to  account  for  the  profits  to  the 
legal  owner,  without  any  re-entry  on  his  part  ;(a)  the  ver- 
dict in  the  ejectment  being  no  evidence  in  a  subsequent 
action,  even  between  the  same  parties. (b)  Since,  however, 
the  claimant  has  a  mere  possession  given  to  him  by  the 
judgment,  it  may  be  asked  how  he  can  become  seised  ac- 
cording to  his  title,  if  he  have  more  than  a  chattel  interest 
in  the  land.  This  is  effected  by  another  fiction.  It  is  a 
rule  of  law,  that  when  a  man,  having  a  title  to  an  estate, 
comes  into  possession  of  it  by  lawful  means,  he  shall  be  in 
possession  according  to  his  title  ;  and,  therefore,  when  pos- 
session is  once  given  by  the  sheriff,  the  possession  and  title 
are  said  to  unite,  and  the  plaintiff's  lessor  holds  the  lands 
according  to  the  nature  of  his  interest  in  them. 

As  the  judgment  is  grounded  on  the  verdict,  it  ought  not 
to  be  entered  up  for  more  land,  or  for  different  parcels,  than 
the  defendant  was  found  guilty  of  by  the  verdict,  though  a 

(?)  Clymerv.LUtUr,  lW.Blk.345.  (a)  Taylor,  d.  Atkins,  v.  Horde, 
348.  Burr.  60.  90  114. 

(6)  Uerke  v.  liouell,  1  Mod.  10. 


OF  THE  JUDGMENT.  295 

variance  between  the  verdict  and  judgment,  occasioned  by 
the  misprision,  or  default,  of  the  clerk  in  entering  the  judg- 
ment, is  not  fatal,  but  may  be  amended  by  the  Court,  even 
after  a  writ  of  error  brought.(c) 

The  Courts,  indeed,  after  judgment,  make  every  possible 
intendment  in  favor  ofthe  claimant ;  and  if  the  title  declar- 
ed on  can  by  any  means  be  supposed  to  exist,  consistently 
with  the  judgment,  such  judgment  will  be  supported.  Thus, 
where  two  demises  were  laid,  by  different  lessors,  of  the 
same  premises  for  the  same  term,  both  as  to  commence- 
ment and  duration,  and  the  judgment  was,  that  the  plaintiff 
recover  his  terms  in  the  premises  ;  and  it  was  objected,  that 
both  lessors  could  not  have  a  title  to  demise  the  whole  : 
and  that,  therefore,  there  was  an  inconsistency  in  the  judg- 
ment, and  that  it  did  not  appear  which  ofthe  lessors'  rights 
was  established ;  the  Court  affirmed  the  judgment ;  because, 
after  a  verdict,  a  bare  possibility  of  title  consistent  with  the 
judgment  is  sufficient,  and  the  two  lessors  might  have  been 
joint  tenants,  and  yet  refuse  to  join  in  a  lease. (rf)  In  like 
manner,  where  the  declaration  contained  two  distinct  de- 
mises, by  two  different  lessors,  of  two  distinct  undivided 
thirds,  and  judgment  was  given,  that  the  plaintiff"  do  re- 
cover his  said  terms,"  and  on  error  it  appeared,  (from  the 
facts  stated  in  a  bill  of  exceptions  to  the  judge's  directions 
on  a  point  of  law,)  that  the  ejectment  respected  only  one 
undivided  third,  the  judgment  was  held  well  enough,  when 
the  point  was  only  raised  on  a  bill  of  exceptions,  and  semble 
that  it  would  have  been  well  even  on  a  special  verdict.(e) 
Upon  the  same  principle,  when  in  an  ejectment  on  two  se- 

(e)  Mann  v.  Fox,  Cro.  Jac.  681.        («)  Rove,  <t  Boyce,  T.  Power,  2  I» 
Appendix,  No  34.  R.  1.  36. 

(d)  Moires  T.  Barryj  Stran.  1180. 
Ante,  187. 


OF  THE  JUDGMENT. 

veral  demises  of  two  separate  parcels  of  lands,  the  judgment 
was  entered,  that  the  plaintiff  do  recover  his  term,  and  an 
objection  was  taken,  that  it  should  have  said,  that  the  plain- 
tiff do  recover  his  terms ;  the  Court  said  they  would  extend 
the  word  term  to  his  term  in  A.,  and  his  term  in  #.,  and  af- 
firmed the  judgment.(/)  And  where  the  ejectment  was 
upon  two  demises,  by  different  lessors,  and  the  second  de- 
mise was,  "  of  the  aforesaid  premises,"  and  judgment  was 
entered  for  the  plaintiff  as  to  the  first  demise,  and  the  de- 
fendant as  to  the  other ;  and  it  was  objected,  that  from  not 
stating  the  second  demise  to  be  of  "  other  premises,"  the 
judgments  were  contrary  to  each  other,  inasmuch  as  the 
defendant  was  put  without  day,  as  to  the  same  premises  for 
which  the  plaintiff  recovered,  the  Court  affirmed  the  judg- 
ment, and  construed  the  aforesaid  premises  which  the  second 
lessor  demised  to  mean  the  term  in  the  premises/^)  So,  also, 
where  the  plaintiff  in  ejectment  declared  upon  two  demises 
of  several  lands,  by  several  parties,  but  laid  only  one  haben- 
dum, namely,  habendum  tenementa  pr&dicta,  so  demised  by 
the  aforesaid  several  parties,  for  seven  years,  and  it  was  as- 
signed for  error,  that  the  declaration  was  ill  for  want  of 
another  habendum ;  for  that  the  verdict  was  general,  and  it 
was  uncertain  to  which  demise  the  single  habendum  related, 
the  Court  held,  that  reddendo  singula  singulis,  it  was  well 
enough.(A)  Where,  also,  the  declaration  was  for  lands, 
and  common  of  pasture  generally,  without  stating  the  com- 
mon to  be  appendant,  or  appurtenant,  it  was  intended  after 
verdict,  on  a  writ  of  error,  to  be  such  common  as  ejectment 
could  be  maintained  for.(»')  And  where  the  ejectment  was 
for  one  messuage,  or  tenement,  and  four  acres  of  land  to 

(/)  Worrell  v.  Bent,  Strao.  835.  Vent.  214.     S.  C.  Carth.  224.     S.  C. 

(g)  Filter  v  flugfiet,  Strao.  908.  Comb.  190. 

(h)   Slabournc    v.    Bengo,  '  1    Ld.         (»')  Newman  v.  Holdmyfait.  Stran. 

flavin.  561.     Moore    v.  Fursdent   2  64.    Ante,  17. 


OF  THE  JUDGMENT.  297 

the  same  belonging,  the  words  "  to  the  same  belonging" 
were  held  to  be  void ;  for  land  cannot  properly  belong  to 
a  house,  and  then  it  is  a  declaration  of  a  messuage  or  tene- 
ment, and  four  acres  of  land,  which,  though  it  be  void  for 
the  tenement,  is  good  for  the  land ;  for  which  the  plaintiff' 
upon  releasing  the  damages,  had  judgment.(J) 

Upon  a  similar  principle,  where  the  plaintiff,  in  thejlrst 
year  of  his  present  majesty's  reign,  declared  upon  a  demise 
made  in  the  thirty-third  year  of  his  present  majesty,  the 
Court  held,  that  it  was  well  enough  after  verdict ;  because 
it  was  only  a  title  defectively  set  out,  and  there  could  be 
no  doubt  but  that  a  proper  title  was  proved  at  the  trial. (A:) 

If  the  plaintiff  obtain  a  verdict  for  the  whole  premises 
demanded,  the  entry  of  the  judgment  is,  that  the  plaintiff 
recover  his  term  against  the  defendant,  of  and  in  the  pre- 
mises aforesaid,  or  that  he  recover  possession  of  the  terra 
aforesaid.  And  this  form  is  also  used  where  a  moiety,  or 
other  part,  of  the  whole  premises  is  recovered  ;  as,  for  ex- 
ample, when  the  plaintiff  declares  for  forty  acres  in  A.-, 
and  recovers  only  twenty  ;  and  it  is  at  the  lessor's  peril  that 
he  take  out  execution  for  no  more  than  he  has  proved  title 
to.  But  where  the  verdict  is  for  some  parcels  and  not  for 


0)  Wood  v.  Payne,  Cro.  Eliz.  186.  pugnant,  that  even  the  verdict  could 

in    an  old  case,  where  the  plaintiff  not  help  it,  tin-  land  mentioned  in  the 

declared  on  a  lease  of  a  house,  ten  declaration   being   so  different  from 

acres  of  land,  twenty  acres  of  mea-  that    mentioned    in    the    pcrnomru. 

dow,  and  twenty  acres  of  pasture,  by  (.0wm.    Yelv.    16r».)      But   (putrc,  if 

the  name  of  "  a  house  and  ten  acres  such  a   verdict    would   not   now   be 

of  meadow,  be    the   same   more  or  good  for  the  ten  acres  ? 
less,"  and  had  a  verdict,  the  judg-         (k)  Small,  d.  Saktr,  r.  Colt,  Barr. 

iiii-m  was  arrested  ;  because  the  de-  115S*. 
daralion  was   so  nnrertnin   and  re- 

38 


298  OF  THE  JUDGMENT. 

all,  or  part  of  all,  as  where  the  plaintiff  declares  for  lands  in 
.  /..  and  lands  in  />'..  and  the  defendant  is  found  guilty  in 
A.  only,  the  judgment(/)  is,  that  the  plaintiff  recover  hi* 
term  in  A. ;  and  as  to  the  other  part,  whereof  the  jury  ac- 
quitted the  defendant,  that  the  plaintiff  be  in  mercy,  and 
that  the  defendant  go  thereof  without  day.(m) 

If  the  defendant  be  acquitted  of  part,  and  judgment  be 
entered,  quod  defendens  sit  quietus  quoad,  that  part  whereof 
he  is  acquitted,  this  is  error;  for  the  judgment  in  this  ac- 
tion is  not  final,  as  in  a  writ  of  right ;  nor  does  it  protect  the 
defendant  from  any  further  suit,  but  only  acquits  him  against 
the  title  set  up  by  the  plaintiff  in  the  action. (n) 

If  a  sole  defendant  die  after  the  commencement  of  the 
assizes  and  before  verdict,  or  after  verdict  and  before  judg- 
ment, it  will  not  abate  the  suit ;  nor  can  his  death  be  al- 
leged for  error,  provided  the  judgment  be  entered  within 
two  terms  after  the  verdict. (o) 

When  there  are  several  defendants,  and  one  of  them  die» 
at  aay  time  before  judgment,  the  lessor  may  proceed  against 
the  survivors,  upon  suggesting  the  deathQ0)  of  such  defen- 
dant upon  the  plea  roll :  the  suggestion  need  not  also  be 
entered  upon  the  nisi  prius  roll ;  for  it  is  sufficient  if  it  there 
appear  to  the  judge,  what  he  is  to  try,  and  between  whom ; 


(0  As  an  ejectment  is  an  action  of  T.  Clerk,  Carth.  390.     S.  C.  6  Mod. 

trespass    ri   et   armis,   the  judgment  285.) 

before  the  statute  of  5  and  6  W.  &.  M.        (in)  Judgment  Book,  72,  73. 
c.  12.  used  to  run  quod  defendens  capi-        (n)  Taylor  v.  Wilbort,  Cro.  Eliz. 

atw;  but,  since  that  statute,  such  en-  768. 
try  is  no  longer  necessary.    (Linsry        (o)  17  Car.  II.  c.  8. 

(p)  8  and  9  Will.  III.  c.  11.  s.  7. 


OF  THE  JUDGMENT.  299 

nor  need  the  judgment  say,  quod  quarens  nil  capiat  per  breve 
against  the  dead  defendant.(9)[8] 

If  one  of  several  defendants  die  before  verdict,  it  is  the 
better  way  to  suggest  his  death  on  the  roll  before  the  trial, 
and  to  award  a  venire  to  try  the  issue  against  the  surviving 
defendants  5(7)  although  where  in  such  case  the  venire  was 
awarded  against  all,  upon  suggesting  the  death  of  the  one 
upon  the  roll  after  the  verdict,  the  plaintiff  had  judgment 
for  the  whole  against  the  others. (r)  But  if  the  lessor  pro- 
ceed to  trial,  and  obtain  judgment  against  all  the  defen- 
dants, without  such  suggestion,  it  is  error,  because  there 
can  be  no  verdict,  or  judgment,  against  a  person  not  in  be- 
ing.^) 

The  entry  of  the  judgment,  notwithstanding  the  death  of 
one  of  several  defendants,  ought  to  be  general,  that  the 
plaintiff  recover  his  term  in  the  premises  against  the  survi- 


(q)  Far  v.  Derm,  Burr.  362.  («)  Gilb.  Eject.  98. 

(r)  Uree  v  Rolle,  Ld.  Raym.  716. 


[8]  In  ejectment,  where  defendants  sever  in  pleading,  and  enter  into  se- 
parate consent  rules,  the  notices  and  pleadings  must  continue  to  be  entitled 
against  all,  but  each  party  must  be  served  with  a  notice.  Jackson  v.  Cooper, 
1  Caines'  Rep.  10. 

Where  several  defendants  plead  jointly,  plaintiff"  is  bound  to  prove  a  joint 
possession  ;  and  if  it  appear  that  two  of  the  defendants  lull  in  severally,  and 
the  others  jointly,  plaintiff*  can  hare  judgment  only  against  those  holding  joint- 
ly, and  the  defendants  holding  in  geveralty  will  be  entitled  to  judgment,  for 
otherwise  those  holding  in  severally  would  be  liable  fur  the  mcsnc  profits  of 
the  whole.  Jackson  v.  Hazen,2  Johns.  438. 

In  a  subsequent  case,  however,  (Jackson  v.  Woods,  6  Johns.  281.)  Kent,C  J.» 
jays,  "  perhaps  tb»>  doctrine  in  Jackson  v.  Hnsen,  was  pressed  too  far,"  and 
decided,  that  in  ejectment  against  five  defendants,  whrre  the  jury  found  them 
separately  guilty,  as  to  the  part  separately  occupied  by  each  of  them,  the 
plaintiff*  was  entitled  to  judgment  against  all  the  defendant*  severally,  accord- 
ing to  the  verdict. 


300  OF  THE  COSTS. 

vors  ;(<)  but  execution  must  not  be  taken  out  for  more  than 
the  plaintiff  has  a  right  to  recover. 

It  seems,  that  if  the  defendants  make  a  joint  defence  for 
the  whole  land  demanded,  and  one  of  them  die,  execution 
may  be  given  of  the  whole,  because  the  whole  interest  comes 
by  survivorship  to  the  others,  and  therefore  the  plaintiff 
hath  still  persons  before  the  court  to  defend  the  whole  ;  but 
that  where  each  of  the  defendants  makes  a  defence  for  part 
only,  the  plaintiff,  upon  the  death  of  one  of  them,  must  not 
take  out  execution  for  the  part  in  his  possession,  because 
they  are  in  the  nature  of  distinct  defendants,  and  conse« 
quently,  as  to  that  part  which  was  defended  by  the  person 
deceased,  there  is  no  person  in  court  against  whom  judg- 
ment can  be  given,  or  execution  taken  out.(w) 

If  an  ejectment  be  brought  against  baron  and  feme,  and 
the  plaintiff  have  a  verdict  against  both,  but,  before  judg- 
ment, the  husband  dies,  the  plaintiff,  on  suggesting  his  death, 
may  have  judgment  against  the  wife  ;  because  (having  been, 
found  guilty  of  the  trespass)  she  must  have  obtained  the 
unlawful  possession  jointly  with  her  husband,  or  have  had 
the  whole  possession  in  her  own  right ;  and  in  either  case, 
the  possession  is  wholly  in  her  on  the  death  of  her  hus- 
band.^) 

OF  THE  COSTS. 

When  the  action  is  undefended,  and  judgment  is  entered 
against  the  casual  ejector,  the, only  remedy  which  the  lessor 
of  the  plaintiff  has  for  his  costs,  is  an  action  for  mesiie  pro- 


(/)  Far  v.  Denn,  1  Burr.  3C2.  (r)  Rigtey  v.   Lee,  Cro.  Jac.  356. 

(u)  CUb.  Eject.  98.  Let  v.  Rowlccley,  1  Roll.  14. 


OF  THE  COSTS.  301 

fits,  in  which,  at  the  discretion  of  the  jury,  they  are  reco- 
verable as  consequential  damages. 

When  the  party  interested  appears  and  enters  into  the 
consent  rule,  and  afterwards  at  the  trial  refuses  to  confess, 
he  is  liable,  upon  such  consent  rule,  to  the  payment  of  costs, 
and  an  attachment  may  be  issued  against  him  if  he  refuse 
or  neglect  to  pay  them  ;(a>)  but  no  writ  of  fieri  facias,  or 
capias  ad  satisfacicndum,  will  in  this  case  lie,  because  the 
judgment  in  the  ejectment  is  against  the  casual  ejcctor.(x) 

When  there  are  several  defendants,  some  of  whom  ap- 
pear at  the  trial  and  confess,  but  others  do  not  appear,  and 
a  verdict  is  found  against  those  who  do  appear,  each  defen- 
dant is  liable  for  the  whole  costs,  and  the  plaintiff's  lessor 
may  tax  them  all  against  any  one  or  all  of  the  defendants 
at  the  same  time ;  that  is  to  say,  upon  the  postea  against 
those  who  appear,  and  upon  the  consent  rule  against  those 
who  do  not  appear ;  and  if  after  satisfaction  from  one  defen- 
dant for  the  costs,  he  take  out  execution  against  another, 
the  Court  will  interfere  to  prevent  it.  But  it  seems  he  can- 
not separate  the  costs,  and  tax  part  of  them  against  one  de- 
fendant, and  part  against  anothcr.(y) 

If  the  lessor  of  the  plaintiff  die  before  the  commission- 
day  of  the  assizes,  and  the  plaintiff  be  nonsuited  by  reason 
of  the  defendant's  refusal  to  confess,  the  lessor's  represen- 
tative cannot  recover  any  costs  ;  because  the  consent  rule 
is  merely  personal,  and  does  not  extend  to  the  representa- 
tive :(z)  but  where  the  plaintiff's  lessor  died  after  the  trial, 
the  defendant  was  compelled  by  the  Court  to  pay  to  his 

(»/•)  Turner  v.  Barnaby,  1  Salk.  (y)  Tlinuiont,  d.  Wilton,  v.  Foot, 
269  fi.  N  P.  336.  S.  C.  Bam.  HH. 

(.r)  Goodright  v.  Vice,  Barn.  182.  (*)  Thrutlout  v.  Bedwcll,  2  Wils.  7. 


302  OF  THE  COSTS. 

representative  the  costs,  which  had  been  taxed  by  consent 
upon  the  consent  rule. (a) 

When  the  tenant  appears,  and  there  is  a  verdict  and 
judgment  against  him,  execution  may  be  taken  out  thereon 
for  the  costs,  as  in  ordinary  cases  ;  and  the  lessor  olf  the 
plaintiff  may  have  a  capias  ad  satisfaciendum,  or  a  fieri  fa- 
cias, for  the  costs,  and  an  habere  facias  possessionem  for 
the  possession,  separately,  or  in  one  writ  at  his  pleasure.(i) 

When  the  judgment  in  ejectment  is  against  a  feme  sole, 
who  marries  before  execution,  the  plaintiff's  lessor  should 
sue  out  an  habere  facias  possessionem  in  the  maiden  name 
of  the  defendant  for  the  land,  and  then  proceed  by  scire  fa- 
cias against  the  husband  and  wife  for  the  costs. (c) 

When  the  landlord  is  made  defendant  without  the  tenant, 
the  judgment  to  recover  the  possession  is  against  the  casual 
ejector ;  but,  nevertheless,  as  there  is  a  judgment  in  exis- 
tence against  the  landlord,  execution  may  be  taken  out 
thereon  for  the  costs. (c?) 

It  may  be  collected  from  the  case  of  Gulliver  v.  Drink- 
water,(e)  that,  independently  of  these  remedies,  the  lessor 
may,  in  all  cases,  recover  the  amount  of  his  taxed  costs(y) 
in  an  action  for  mesne  profits  ;  but  that  the  Court  will  not 
interfere  to  assist  him,  if  the  jury  do  not  include  such  cost* 
in  their  damages,  when  the  lessor  might  have  proceeded  for 
them  in  a  different  manner. 


(a)  Goodright  v.  Holton,  Barn.  119.        (c)  Doe,  d.  Taggart,  v.  Butcher,  8 
Post,  321.  M.  it  S.  657.— Appendix,  No.  42. 

(b)  Appendix,  No.  36,  37,  38,  39,         (<l)  Appendix,  No.  36. 
40.  (e)  2  T.  R.  261. 

(/)  Doe  v.  Davit,  1  Esp.  368. 


OF  THE  COSTS.  SOS 

When  the  proceedings  are  in  the  Court  of  King's  Bench, 
and  a  verdict  is  found  for  the  defendant,  or  the  plaintiff  is 
nonsuited  for  any  other  cause  than  the  defendant's  not  con- 
fessing lease,  &c.  the  defendant  must  tax  his  costs  on  the 
posted,  as  in  other  actions,  and  sue  out  a  capias  ad  satisfa- 
ciendum,  or  Jicri  facias,  for  the  same  against  the  plaintiff; 
and  if,  upon  showing  this  writ  under  seal  to  the  lessor, 
serving  him  with  a  copy  of  the  consent  rule,  and  demand- 
ing the  costs,  the  lessor  do  riot  pay  them,  the  Court  will, 
on  an  affidavit  of  the  facts,  grant  an  attachment  against 
him.(g)[9] 

When  the  proceedings  are  in  the  Court  of  Common 
Pleas,  it  is  the  practice  in  such  case,  for  the  prothonotary 
to  tax  the  costs  upon  the  postea,  and  mark  them  upon  the 
consent  rule.  This  rule  is  then  shown  to  the  plaintiff's 
lessor,  and  at  the  same  time  the  costs  are  demanded  of  him 
by  the  defendant  personally,  or  by  his  attorney  named  in 
the  rule  ;  and,  upon  affidavit  of  such  demand,  and  of  the 
lessor's  refusal  to  pay  the  costs,  an  attachment  may  be  ob- 
tained.^ 1] 

(g)  TUy  v.  Baily,  M.  6  Geo  II.  Mansfidd,  C.  J.  expressed  a  hope  that 
(h)  Imp.  C.  B.  5  Ed.  654.     In  a  nothing  so  absurd  as  a  capias  ad  satis- 
recent  case  in  the  Common  Pleas,  in  facienthim  against  the  nominal  plain- 
which  the  parties  had    pursued  the  tiff,  would  ever   again  be   heard  of. 
practice  of  the  Court  of  King's  Bench,  Doe,  d.  Prior,  v.  Salter,  3  Taunt.  486. 


[9]  If  a  person  be  let  in  to  defend  on  payment  of  costs,  and  after  entering 
into  the  consent  rule  keep  out  of  the  way  to  avoid  being  served  with  a  o  >;>  v 
of  the  ca,  $a.  against  the  casual  ejector,  a  rule  will  be  granted  to  show  cause 
why  an  attachment  should  not  go  against  him,  and  that  service  of  the  rule  at 
the  defendant's  house  shall  be-  sufficient.  Jackson  v.  Sliiet,  2  Caines'  Rep.  368. 

[1]  On  application  for  attachment  for  costs,  for  not  confessing  lease,  entry, 
and  ouster,  the  affidavit  must  show  an  authority  to  demand  them  given  07 
the  lessor.  Jackson  v.  Stilu,  3  Caines',  140. 


504  OF  THE  COSTS. 

When  there  are  several  defendants  and  one  or  more  of 
them  is,  or  are,  acquitted  by  the  verdict,  he,  she,  or  they, 
will,  by  the  provisions  of  statute  8  &  9  W.  and  M.  c.  11. 
be  entitled  to  costs,  unless  the  judge  shall  certify  in  open 
court,  that  there  was  good  cause  for  making  such  person 
or  persons  defendant  or  defendants,  (i) 

When  the  lessor  of  the  plaintiff  is  a  peer,  no  attachment 
will  be  granted  against  his  person  ;  but  the  Court  will  grant 
a  rule  to  show  cause,  why  an  attachment,  as  to  his  goods 
and  chattels,  should  not  be  issued,  and,  if  necessary,  will 
make  that  rule  absolute.(  j) 

If  the  lessor  of  the  plaintiff  die  after  issue  joined  and  be- 
fore trial,  or  even  after  trial  and  before  payment  of  costs, 
the  defendant  cannot  recover  his  costs  against  the  repre- 
sentative, the  consent  rule  being,  (as  already  mentioned,) 
merely  personal ;  and  it  seems  immaterial,  whether  the  de- 
fendant's claim  arises  from  a  verdict  in  his  favor,  or  from, 
the  plaintiff's  being  nonsuited  upon  the  merits. (k) 

"' 

In  a  case  where  baron  and  feme  were  lessors  in  ejectment, 
and  the  baron  died  after  entering  into  the  rule,  the  feme  was 
held  liable  to  the  payment  of  the  costs  ;  because  they  were 
to  be  paid  by  the  lessors  of  the  plaintiff,  and  both  of  them 
were  in  the  lease. (/) 

Where  the  lessor  of  the  plaintiff  was  an  infant,  and  his 

(j)  The  provisions  of  this  statute  (j)  Thornby  v.  Fleeticood,  Cos.  Pr. 

seem  scarcely  applicable  to  the  pre-  C.  P.  7. 

sent  mode  of  conducting  ejectments,  (k)  Thruxtoul  v.  Bedtrtll,  2  Wils.  7. 

for  how  can   it   be  said,  that  he  who  Doe,  d.  Linlot,  v.  Ford,  2  Smith,  407. 

was  made  a  defendant  at  his  own  re-  (/)  Morgan  v.  Slapely,  1  Keb.  827. 
quest,   was    made    so   without    good 
cause ! 


OF  THE  EXECUTION.  305 

lessee  was  nonsuited,  and  50/.  costs  were  given  to  the  de- 
frndant,  and  the  infant's  father,  who  prosecuted  the  cuit. 
was  dead,  the  Court  made  a  rule,  that  the  lessor  should 
pay  the  costs ;  yet,  says  the  book,  it  was  doubted  in  this 
case,  because  of  his  infancy;  but  if  the  father  had  been 
alive,  the  Court  would  have  made  him  pay  the  costs,  or,  if 
he  had  left  assets,  his  executor.  The  question  was  ad- 
journed.(m)[2] 

If  the  lessor  of  the  plaintiff  abandon  the  action  after  the 
appearance  of  the  tenant,  or  landlord,  and  refuse  to  join  in 
the  consent  rule,  he  is  held  not  liable  for  the  defendant's 
costs,  upon  the  principle,  that  until  he  has  put  his  signature 
to  the  rule,  he  has  not  consented  to  proceed  against  the  new 
defendant.(n) 

If  the  lessor  of  the  plaintiff  sue  in  forma  pauper! s,  he  will 
be  dispaupered  in  case  of  vexatious  delay  ;  but  it  does  not 
seem,  that  the  Court  will  also  compel  him  to  pay  the  de- 
fendant's costs. (o) 

When  there  are  several  defendants,  the  lessor  of  the 
plaintiff  has  his  election  to  pay  costs  to  which  defendant  h^ 
pleases.(/?) 

OF  THE  EXECUTION. 
When  the  lessor  of  the  plaintiff  prevails,  he  may  enter 

(m)  Jinon.  1  Frrem.  373.  (o)  Dee,  d.  Leppingwdl,  T.  Tnu- 

(n)  Smith  v.  Barnardiston,  W.  Blk.    sell,  6  East,  606. 
904.  (p)  Jordan  v.  Harper,  Stran.  616. 


[2]  It  i<  too  lato  after  trial  to  move  that  the  infant  lessors  of  the  plaintiff 
file  iecurity  for  costs.    Jackion  v.  ButhntlL  13  Johns.  380. 

39 


306  OF  THE  EXECUTION. 

peaceably  upon  the  premises  recovered,  without  any  writ  of 
execution,  l>«v:uisr  the  land  recovered  is  certain  ;(y)  but  it 
is  more  prudent  to  sue  out  the  regular  writ,  as  the  assistance 
of  the  sheriff  may  be  necessary  to  preserve  the  peace. [3] 

The  writ  of  execution  in  an  ejectment  is  called  the  writ 
of  habere  facias  possessionem,  and  answers  to  the  habere. 
facias  seisinam  in  real  actions  :  for  as  in  the  one  case,  the 
freehold  being  recovered,  the  sheriff  is  ordered  to  g'ne  the 
demandant  seisin  of  the  lands  in  question,  so  also  in  the 
other  case,  the  possession  being  recovered,  the  sheriff  is 
commanded  to  give  execution  of  the  possession. (r) 

When  the  landlord  is  admitted  to  defend  the  action,  and 
the  judgment  is  entered  against  the  casual  ejector,  with  a 
stay  of  execution  until  further  order,  the  lessor,  before  he 
takes  out  execution,  must  move  the  Court  for  leave  to  do  so ; 
and  if  he  sue  out  a  writ  of  possession  without  such  motion, 
the  execution  will  be  set  aside  for  irregularity.(s)  The  rule, 
however,  for  this  purpose  is  absolute  in  the  first  instance. i/) 

If  the  lessor  of  the  plaintiff  be  devested  of  his  right  of 
possession  between  the  time  when  his  demise  is  laid,  and 
the  time  of  issuing  execution,  it  seems  that  the  Court  will 
prevent  him  from  issuing  a  writof  habere  faciaspossessionem, 
or  set  one  aside,  if  issued. (u) 

(q)    Taylor,  d.  Atkins,  v.   Horde,  (/)  Ftnn,  d.  Rickaitson,  v.  Marriott, 

Burr.  60.  88.    Anon.  2  Sid.  156.6.  Bam.  Ifcj. 

(r)  Appendix,  Nos.  36  to  40.  (u)  Doe,  d.  Morgan,   v.  Blurk,  3 

(»)  Goodright,  d.   Rowell,  v    Vice,  Camp.  447. 
Barn    182.     Appendix,  No.  35. 

[3]  After  jiiilg-ment  lessor  may  enter  without  n  habere  fac.  pots.,  and  it  pro- 
tected from  trespass  between  parties  and  privies,  but  he  mu>t  enter  before  the 
expiration  of  the  demise.  Jackton  v.  Haciland,  13  John*.  229. 


OF  THE  EXECUTION.  307 

In  other  cases,  the  execution  follows,  of  course,  upon 
the  judgment. 

The  writ  of  possession  is  drawn  up  in  general  terms, 
commanding  the  sheriff  to  give  to  the  plaintiff,  "  the  pos- 
session of  his  term,  of  and  in  the  premises  recovered  in  the 
ejectment ;"  but  without  any  particular  specification  of  the 
lands  whereof  he  is  to  make  execution  ;  and  as  the  descrip- 
tion of  the  premises,  in  the  demise  in  the  declaration,  is  also 
too  general  to  serve  as  a  direction  to  the  sheriff,  it  is  the 
practice,  for  the  lessor  of  the  plaintiff,  at  his  own  peril,  to 
point  out  to  the  sheriff  the  premises  whereof  he  is  to  give 
him  possession  ;  and  if  the  lessor  take  more  than  he  has 
recovered  in  the  action,  the  courts  will  interfere  in  a  sum- 
mary manner,  and  compel  him  to  make  restitution. (r) 

They  will,  also,  if  circumstances  require,  interfere  be- 
fore the  execution  of  the  writ,  and  restrain  the  lessor  from 
taking  possession  of  more  than  he  is  entitled  to.  As,  where 
the  lessor  had  declared  for  lands  held  under  two  separate 
titles,  and  by  a  mistake  of  the  judge  upon  the  law  of  the 
case,  the  verdict  was  given  for  the  plaintiff  upon  both  titles, 
when  it  ought  to  have  been  entered  for  the  defendant  as  to 
the  lands  comprised  in  one  of  them  ;  the  Court,  after  argu- 
ment, granted  a  rule  to  confine  the  execution  to  those  lands 
only,  to  which  the  lessor  had  a  valid  title.(t»)[4] 

(r)  Roe,  A.  Saul,  v.  Dmcson,  3  WiU.    T.  R.  1 18,  in  notii.    F.I  vide  Brooke,  d 
49.    Jbile,  21.  Mence,  \.  Baldwin,  Barn.  468. 

(u-)  Doe,  d.  Forsler,  v.  Wandlass,  ^ 


[4]  Where  the  jury  ijires  a  general  verdict  for  the  plaintiff  in  ejectment, 
but  he  shows  title  to  only  a  moiety  of  tlie  promises,  the  Court  will  order  hiiu 
to  take  possession  of  thr>  moJetv  onlr.  Jcflnon  v.  I'an  Rnrgen,  1  Johns.  Cas 
101. 


OF  THE  EXECUTION. 

The  sheriff,  it  seems,  previously  to  the  execution  of  thr 
writ,  may  demand  an  indemnity  from  the  plaintiff  ;(x)  and 
wlien  he  has  to  deliver  possession  of  any  particular  num- 
ber of  acres,  he  must  estimate  them  according  to  the  cus- 
tom of  the  country  in  which  the  lauds  are  situated. (y) 

The  possession  to  be  given  by  the  sheriff,  is  a  full  and 
actual  possession,  and  he  is  armed  with  all  power  neces- 
sary to  this  end.  Thus,  if  the  recovery  be  of  a  house,  and 
he  he  denied  entrance,  he  may  justify  breaking  open  the 
door,  for  the  writ  cannot  otherwise  be  executed,  (z 

If  the  lessor  recover  several  messuages  in  the  posses- 
sion of  different  persons,  the  sheriff  must  go  to  each  of  the 
several  houses,  and  severally  deliver  possession  thereof, 
(which  is  done  by  turning  out  the  tenants  ;)  for  the  delivery 
of  the  possession  of  one  messuage,  in  the  name  of  all,  is  not 
a  good  execution  of  the  writ ;  since  the  possession  of  one 
tenant  is  not  the  possession  of  the  olher.(a)  But  when  the 
several  messuages  are  in  the  possession  of  one  tenant  only, 
it  is  sufficient  if  he  give  possession  of  one  messuage  in  the. 
name  of  all. (6) 

When  the  recovery  is  of  land,  the  same  distinction  seems 
to  prevail ;  that  is  to  say,  if  there  be  only  one  tenant,  a  de- 
livery of  any  part,  in  the  name  of  the  whole,  will  be  suffi- 
cient ;  but  if  there  be  more  than  one,  a  separate  delivery 
of  the  lands  in  the  possession  of  each  tenant  respectively 
must  be  made. (a) 

If  the  officers  be  disturbed  in  the  execution  of  the  writ, 

(i)  Gilh.  Eject.  1 10.  (a)  I  Roll.  Ab.  886.     H.  2. 

(.V)  Roll.  Ah.  8841  H.  4.  (b)  Floyd  v.  Betfiill,   1  Roll.  Rep. 

(«)  Semayiic's  case,  5  Co.  91 .  (6.)       420. 


OF  THE  EXECUTION.  309 

the  Court  will,  on  affidavit  of  the  circumstances,  grant  an 
attachment  against  the  party,  whether  he  he  the  defendant, 
or  a  stranger  :(r  and  the  writ  is  not  understood  to  he  com- 
pletely executed,  until  the  sherilFand  his  officers  are  gone, 
and  the  plaintiff  is  left  in  quiet  possession. 

In  an  old  case  where  the  sheriff  returned,  that  in  the 
execution  of  the  writ,  he,  removed  all  the  persons,  whom 
upon  diligent  search  he  could  find  on  the  premises,  and 
gave  peaceahlc  possession  to  the  plaintiff,  and  that,  imme- 
diately after  he  was  gone,  three  men,  who  were  secretly 
lodged  in  the  house,  expelled  the  plaintiff,  upon  notice  of 
which  he  returned  to  the  house  to  put  the  plaintiff  in  full 
possession,  but  met  with  such  resistance  that  he  could  not 
do  it,  but  at  the  peril  of  his  life  ;  the  Court  held,  that  the 
same  was  no  execution,  and  awarded  a  new  Wjit.(rf) 

In  the  old  authorities  we  find  it  laid  down,  that  if  the  lessor, 
after  having  had  possession  given  to  him  by  the  sheriff,  and 
before  the  writ  of  possession  has  been  returned  and  filed, 
be  again  ousted  by  the  defendant,  he  shall  have  a  new  writ 
of  possession,  or  an  attachment  ;  but  that  if  he  be  ousted  by 
a  M  ranger,  he  shall  be  driven  to  another  ejectment  ;  and  the 
reason  assigned  for  this  distinction  is,  that  in  the  one  case 
the  defendant  shall  never,  by  his  own  act,  keep  the  posses- 
sion which  the  plaintiff  has  recovered  from  him  by  due 
course  of  law,  and  in  the  other  that,  as  the  title  was  i 
tried  between  the  plaintiff  and  the  stranger,  he  may  claim 
the  land  under  a  title  paramount  to  that  of  the  plaintiff,  and 
therefore  the  recovery  and  execution  in  the  former  action 
oii^ht  not  to  hinder  the  stranger  from  keeping  that  posses- 
sion to  which  he  may  have  a  right.  It  is  also  said,  that  the 


(•)  Kingsrialc  v.  .Vc/in,  6  Mod.  27          v'rf.)  Upton  v.  Wclli,  1  L«*>n. 
9.  C.  Salk:321. 


310  OF  THE  EXECUTION. 

return  of  the  writ  of  the  execution  is  so  much  in  the  power 
of  the  plaintiff,  that  the  Court  will  not,  at  the  instance  of 
the  defendant,  direct  it  to  be  returned  ;  for  the  return  is  left 
to  the  discretion  of  the  plaintiff,  that  he  may  do  what  is  most 
for  his  own  advantage,  in  order  to  have  the  benefit  of  his 
judgment ;  the  best  way  to  effect  which  is,  to  permit  him  to 
renew  the  execution  at  his  pleasure,  until  full  execution  be 
obtained. (e) 

All  these  cases,  however,  seem  to  be  overruled  by  a  re- 
cent decision  of  the  Court  of  Common  Pleas.  The  lessor 
of  the  plaintiff  had  been  put  into  possession  by  virtue  of  a 
writ  of  habere  facias  possessioncm,  on  the  22d  day  of  Fe- 
bruary, 1 806,  which  writ  had  never  been  returned  by  the 
sheriff;  and  on  the  10th  day  of  October,  1807,  whilst  he 
continued  in  possession,  the  person,  against  whom  he  had 
recovered  the  premises,  entered  into  the  house  by  force, 
and  resisted  with  violence  all  attempts  to  regain  the  pos- 
session. Upon  these  grounds,  a  new  writ  of  habere  facias 
was  moved  for,  and  the  case  of  Radcliff  v.  Tate,(f)  was 
cited :  but  "  the  Court  denied  the  authority  of  that  case, 
and  held,  that  possession  having  been  given  under  the  first 
writ,  the  sheriff  ought  to  have  returned,  '  that  he  had  given 
possession,'  and  that  the  plaintiff  could  not  afterwards  have 
had  another  writ :  an  alias  cannot  issue  after  a  writ  is  exe- 
cuted. If  it  could,  the  plaintiff,  by  omitting  to  call  on  the 
sheriff  to  make  his  return  to  the  writ,  might  retain  the  right 
of  suing  out  a  new  habere  facias  possessionem,  as  a  remedy 
for  any  trespass  which  the  same  tenant  might  commit  with- 

(e)  Rex  v.  Harris,  Ld    Rayra.  482.  v.   Tatcnor,  1  Roll.  R«>p.  353.     Dm. 

JIulintiu:    v.    Fulgam,    Palm.    289.  vies,  d.  Porey,  v.  Doe,  W.  Blk.  892. 

Raldijf  v.    Tote,  1  Keb.  776.     Lore-  Anon.  2  Brown,  263.     Kingtdale  v. 

less  v.  Ratcliff,  1  Keb.  7O>.     Dece-  Mann,  6  Mod.  27.  S.  C.  Salk.  321. 

reux  T.   Underbill,  2  Keb.  245.     For-  Goodrighi  v.  Hart,  Stran.  321. 
tune  T.  Johnson,  Styl.  318.     Piermn        (/)  1  Keb.  779. 


OF  THE  EXECUTION.  311 

in  twenty  years  next  after  the  date  of  the  judgment  ;"(#) 
and  the  rule  was  refused. 

If  the  lessor  neglect  to  sue  out  his  writ  of  possession  for 
a  year  and  a  day  after  judgment,  he  must  revive  the  judg- 
ment by  scire  facias,  as  in  other  cases  ;  and  when  the  judg- 
ment is  against  the  casual  ejector,  the  tcr-tenant  must  be 
joined  in  the  writ.(A) 

When  a  sole  defendant  in  ejectment  dies  after  judgment, 
and  before  execution,  it  has  been  doubted  whether  a  scire 
facias  is  necessary,  because  the  execution  is  of  the  land 
only,  and  no  new  person  is  charged  ;(i)  but  the  surer  me- 
thod is,  notwithstanding,  to  sue  out  a  scire  facias.  And  as 
a  scire  facias  for  the  land  must  issue  against  the  ter-tenant, 
whoever  he  may  be,  it  will  be  also  necessary  to  sue  out  an- 
other scire  facias  for  the  costs  against  the  personal  repre- 
sentative, unless  he  be  himself  the  ter-tenant.(y) 

When  the  judgment  in  ejectment  is  against  a  feme  sole, 
who  marries  before  execution,  the  plaintiff's  lessor  should 
sue  out  an  habere  facias  possessionem  in  the  maiden  name 
of  the  defendant  for  the  land,  and  then  proceed  by  scire 
facias  against  the  husband  and  wife  for  the  costs. (j) 

If  the  lessor  of  the  plaintiff  die  after  the  teste  of  the  writ, 
but  before  it  is  actually  sued  out,  it  is  not  necessary  to  re- 
vive the  judgment  by  scire  facias  ;  and  as  he  is  not  a  party 
on  the  record,  it  seems  no  scire  facias  would  be  necessary, 

(?)  Doe  v.  Roe,  1  Taunt.  65.  tor  v.  Johnson,  2  Salk.  600.  S.  C.  Li! 

(//)  Willier*  v  Harris,  Lord  Kay  in.  Raym.  <*>y. 
806. — Appendix,  No.  4:2  (j)   Doe,  d.    Taggart,   T.    Butcher, 

(i)  Per  Holt,  C,.  J.    Wilhm  v.  /for-  3  M.  &  S.  667 
rii,  LA    Raym.  806.     Std  vide  Proc- 


312  OF  THE  WRIT  OF  ERROR. 

if  he  died  before  the  tcsle  of  the  haberc  facias  possessionem, 
although  the  case  of  JDo«,  d.  Beyer  v.  Roejjc)  has  certainly 
left  this  point  somewhat  doubtful. [5] 

OF  THE  WRIT  OF  ERROR. 

A  writ  of  error  in  ejectment  cannot  he  brought  in  the 
name  of  the  casual  ejector,(/)  and  consequently  it  will  not 
lie  until  after  verdict ;  for,  before  appearance,  the  casual 
ejector  is  the  only  defendant  in  the  suit,  and,  after  appear- 
ance, the  new  defendant  is  bound  by  the  terms  of  the  con- 
sent rule  to  plead  the  general  issue. (m)  If  al^o  the  defen- 
dant refuse  at  the  trial  to  confess,  &c.  he  will  be  precluded 
from  bringing  error,  because  the  plaintiff  will  then  be  non- 
suited as  to  him,  and  the  judgment  will  be  entered  against 
the  casual  ejector,  (w) 

When  indeed  the  landlord  defends  alone,  and  the  ver- 
dict is  found  against  him,  error  may  be  brought,  notwith- 
standing that  the  judgment,  upon  which  the  execution  i~- 


(k)  Burr.  1970.  course  limited  to  the  modern  practice. 

(/)    Roe,  d.   Humphreys,    v.    Doe,    Ante,  chap.  VI. 
Barn.     181.      This    principle    is    of        (m)  Ante,  232. 


[5]  If  the  defendant  alleges  that  the  lessor  has  taken  possession  of  more 
land  than  was  recovered  by  the  verdict,  a  writ  of  restitution  will  be  ordered  ; 
but  if  lessor  deny  the  allegation,  he  will  be  allowed  a  feigned  issue  to  try  the 
fact.  Jackson  v.  Hasbrouck,  5  Johns.  366.  5  Burr.  2673. 

On  setting  aside  default  against  casual  ejector,  and  a  writ  of  possession 
thereon,  the  Court  will,  on  payment  of  costs,  order  a  writ  of  restitution  Jack- 
son v.  Stiles,  1  Caines'  Rep.  603. 

No  tenant,  who  was  in  possession  anterior  to  the  commencement  of  an 
ejectment,  can  be  dispossessed  upon  a  judgment  and  writ  of  possession,  to 
which  he  is  not  party.  Ex  parte  Reynolds,  1  Caines'  Rep.  600. 

And  if  a  tenant,  whose  possession  is  distinct  from  that  for  which  the  action 
was  brought,  be  turned  out,  he  may  hare  a  writ  of  restitution.  Ibid. 


OF  THE  WRIT  OF  ERROR.  318 

sues,  is  entered  against  the  casual  ejector  ;(m)  for  a  judg- 
ment is  also  in  existence  against  the  landlord,  and  upon 
that  judgment  the  writ  of  error  may  be  taken  out  in  the 
landlord's  name.  To  enable  him,  however,  to  proceed  with 
the  writ  of  error,  he  must  show  the  error  brought,  as  cause 
against  the  plaintiff's  rule  for  taking  out  execution  against 
the  casual  ejector  ;(n)  and  if  he  omit  to  do  this,  and  suffer 
a  regular  execution  to  take  place,  the  Court  will  not,  on  a 
subsequent  motion,  order  the  execution  to  be  set  aside. (o) 

By  statutes  16  and  17  Car.  II.  c.  8.  s.  3  and  4.  it  is 
enacted,  that  no  execution  shall  be  staid  by  writ  of  error, 
upon  any  judgment  after  verdict  in  ejectment,  unless  the 
plaintiff  in  error  shall  become  bound  in  a  reasonable  sum 
to  pay  the  plaintiff  in  ejectment  all  such  costs,  damages, 
and  sums  of  money,  as  shall  be  awarded  to  such  plaintiff, 
upon  judgment  being  affirmed,  or  on  a  nonsuit,  or  discon- 
tinuance had  ;  and,  in  case  of  affirmance,  discontinuance, 
or  nonsuit,  the  Court  may  issue  a  writ  to  inquire,  as  well 
of  the  mesne  profits,  as  of  the  damages  by  any  waste  com- 
mitted after  the  first  judgment ;  and  are  upon  the  return 
thereof  to  give  judgment,  and  award  execution  for  the  same, 
and  also  for  costs  of  suit.[6] 

The  words  of  this  statute  seem  to  render  it  necessary 
for  the  plaintiff  in  error  to  be  personally  bound  ;  but  by  a 
reasonable  construction,  it  is  held  sufficient,  if  he  procure 

(m)  Anlc,  234.  (o)  George,  d.  Bradley,  v.  Wisdom, 

(n)  Ante,  3l»5.  Burr.  766. 


[6]  The  statute  of  New- York  (1  Rev.  Laws,  143.)  is  similar  in  its  provisions 
to  this.  The  statute  ;il.s<>  provides,  that  no  writ  of  error  shall  issue  to  remove 
a  judgment  out  of  the  Supreme  Court,  without  the  certificate  of  a  counsellor 
in  said  court,  that  in  his  opinion  there  is  error  in  substance  ua  the  proceedings. 

40 


314  OF  THE  WRIT  OF  ERROR. 

proper  sureties  to  enter  into  the  recognisance  of  bail,  for 
otherwise  lessors  residing  in  distant  counties  would  sustain 
great  inconvenience,  and  an  infant  lessor,  or  a  lessor  be- 
coming a.  feme  covert  after  action  brought,  would  be  entire- 
ly excluded  from  the  benefit  of  the  act.(p)  But,  although 
the  sureties  may  be  examined  as  to  their  sufficiency,  the 
plaintiff  in  error  cannot,  and,  therefore,  where  the  lessor  of 
the  plaintiff  swore,  that  the  defendant  was  insolvent,  and 
also  that  he  (the  lessor)  had  a  mortgage  upon  the  land  for 
more  than  it  was  worth,  the  Court  still  held,  that  the  de- 
fendant's recognisance  was  sufficient  to  entitle  him  to  hie 
writ  of  error.  (9) 

The  reasonable  sum,  in  which  the  plaintiff  in  error  is 
bound  under  this  statute,  is  generally  double  the  improved 
rent  of  the  premises  in  dispute,  and  the  single  costs  of  the 
ejectment.(<7) 

The  writ  of  error  does  not  operate  as  a  stay  of  execu- 
tion until  bail  is  put  in,  which  cannot  be  done  until  the 
plaintiffs  lessor  has  taxed  his  costs,  for  until  costs  are 
taxed,  the  amount  of  the  penalty  of  the  recognisance  of 
the  bail  in  error  cannot  be  fixed  ;  and  if  the  lessor  choose 
to  waive  his  taxation  of  costs,  and  proceed  for  his  posses- 
sion only,  the  Court  will  not  interfere  to  prevent  him,  not- 
withstanding the  allowance  of  the  writ  of  error.(r) 

In  the  case  of  Wharod  v.  Smart ,(s)  the  defendant  brought 
a  writ  of  error  in  parliament,  and  the  Court  compelled  him 

(p)  Barnes  v.  Bulmcr,  Carth.  121.  Keenc,  d.  Lord  Byron,  v.  Deardon, 

Lushinglon   v.    Dose,    T  Mod.    304.  8  East,  298. 

Keene,  d.  Lord  Byron,  v.  Duirdon,  8  (r)  Doe,  d.   Mcuiter,  v.  Dinely,  4 

East,  298.  Taunt.  289. 

(q)  Tliomas  r.  Goodlitle,  Burr.  2601.  (*)-Burr.  1823. 


OF  BRINGING  A  SECOND  EJECTMENT.  315 

to  enter  into  a  rule  "  not  to  commit  waste  or  destruction 
during  the  pendency  of  the  writ  of  error." 

When  the  plaintiff's  lessor  proceeds  against  the  bail  by 
action  on  the  recognisance,  they  are  not  chargeable  with 
the  mesne  profits  under  stat.  16  and  17  Car.  II.  c.  1.  s.  4., 
unless  their  amount  has  been  first  ascertained  by  writ  of 
inquiry  pursuant  to  the  provisions  therein  contained.(f) 

After  a  recovery  in  ejectment,  the  lessor  of  the  plaintiff 
may  peaceably  enter,  pending  a  writ  of  error,  if  he  find  the 
premises  vacant ;  but  he  cannot  enter  by  force,  nor  take 
out  a  writ  of  execution. (u) 

OF  BRINGING  A  SECOND  EJECTMENT. 

We  have  now  traced  the  proceedings  in  this  action,  from 
the  commencement  to  the  conclusion  ;  and  it  only  remains 
to  add  a  few  remarks  respecting  the  bringing  of  a  new,  or 
second  ejectment. 

It  has  already  been  observed,  that  a  judgment  in  eject- 
ment confers  no  title  upon  the  party  in  whose  favour  it  is 
given ;  and  that  it  is  not  evidence  in  a  subsequent  action, 
even  between  the  same  parties. (r)  From  these  circum- 
stances it  is  manifest,  that  the  judgment  can  never  be  final : 
and  that  it  is  always  in  the  power  of  the  party  failing,  whe- 
ther claimant  or  defendant,  to  bring  a  new  action.  The 
structure  of  the  record  also  renders  it  impossible  to  plead 
a  former  recovery  in  bar  of  a  second  ejectment :  for  the 
plaintiff  in  the  suit  is  only  a  fictitious  person,  and  as  the 

(/)  Dot  r.  Reynolds,  1  M.  &.  S.  247.     Recog.    in     WHhtrt  v.   Harrit,    Ld. 
(u)  Badger  v.  Floyd,  12  Mod.  398.    Raym,  806.  8. 

(r)  Jinie,  192. 


316  ACTION  OF  EJECTMENT. 

demise,  term,  &c.  may  be  laid  many  different  ways,  it 
never  can  be  made  appear  that  the  second  ejectment  is 
brought  upon  the  same  title  as  the  first. 

It  is  said  by  Mr.  Sergeant  SC//OH,  in  his  Practice  of  the 
Courts,(a>)  "  that  it  has  sometimes  been  attempted  in 
Chancery,  after  three  or  four  ejectments,  by  a  bill  of  peace. 
to  establish  the  prevailing  party's  title  ;  yet  it  hath  always 
been  denied,  for  every  termor  may  have  an  ejectment,  and 
every  ejectment  supposes  a  new  demise,  and  the  costs  in 
ejectment  are  a  recompense  for  the  trouble  and  expense  to 
which  the  possessor  is  put.  But  that  where  the  suit  begins 
in  Chancery,  for  relief  touching  pretended  incumbrances 
on  the  title  of  lands,  and  the  Court  has  ordered  the  defend- 
ant to  pursue  an  ejectment  at  law,  there,  after  one  or  two 
ejectments  tried,  and  the  right  settled  to  the  satisfaction  of 
the  Court,  the  Court  hath  ordered  a  perpetual  injunction 
against  the  defendant,  because  there  the  suit  is  first  at- 
tached in  that  court,  and  never  began  at  law ;  and  such 
precedent  incumbrances  appearing  to  be  fraudulent,  and 
inequitable  against  the  possession,  it  is  within  the  compass 
of  the  Court  to  relieve  against  it."  It  should  seem,  how- 
ever, from  the  cases  of  Barefoot  v.  Fry.(x)  and  Leighton  v. 
Leighton,(y)  that  courts  of  equity  will  sometimes  interfere, 
and  grant  perpetual  injunctions,  when  the  ejectments  have 
been  commenced  in  the  usual  way  at  the  common  law. 
And  in  one  case,  where  upon  a  most  vexatious  prosecution 
of  ejectments,  the  Court  of  Chancery  refused  to  grant  a 
perpetual  injunction,  upon  an  appeal  to  the  House  of  Lords, 
the  injunction  was  allowed. (z) 


(w)  2  Sell.  Prac.  144.  (z)  Earl  of  Bath  v.  Shenein,  Bra. 

(x)  Bunb.  158.  Cas.  Parl.  270. 

(y)  1  P.  Wins.  671. 


317 


CHAPTER  XII. 


OF  STAYING  THE  PROCEEDINGS  IN  THE  ACTION  OF 
EJECTMENT. 


THE  discretionary  power  exercised  by  the  Courts  in  the 
regulation  of  ejectments,  is  frequently  called  forth  by  ap- 
plications from  the  defendant,  to  stay  the  proceedings  in 
the  action ;  and  a  separate  consideration  of  the  cases  in 
which  these  applications  have  been  granted,  seems  prefer- 
able to  intermixing  them  with  the  detail  of  the  regular 
practice. 

When  the  ejectment  is  brought  on  the  forfeiture  of  a 
lease,  the  proceedings  will  be  staid  upon  the  application  of 
the  tenant,  until  the  lessor  of  the  plaintiff  has  delivered  par- 
ticulars of  the  breaches  of  covenant,  on  which  he  intends  to 
rely ;  and  a  summons  for  this  purpose  will  be  granted  be- 
fore the  tenant  has  appeared  to  the  action,  or  entered  into 
the  consent  rule. 

When  <he  lessor  of  the  plaintiff  is  an  infant,  the  Court 
will  stay  the  proceedings  until  security  be  given  for  the 
costs,  unless  a  responsible  person  has  been  made  the  plain- 
tiff in  the  suit,  or  the  father,  or  guardian,  undertake  to  pay 
them  :  but  an  inquiry  into  these  facts  should  be  made  pre- 


318  OF  STAYING  PROCEEDINGS. 

viously  to  the  application. (a)  The  proceedings  will  also 
be  staid  until  security  be  given  for  the  costs,  when  the  les- 
sor resides  abroad  ;(&)  and,  in  a  case  where  an  ejectment 
was  brought  upon  the  demise  of  a  person  resident  in  Ire- 
land, the  Court  of  King's  Bench  staid  the  proceedings  until 
security  should  be  given  for  the  costs  ;  although  it  was  an 
ejectment  brought  under  the  direction  of  the  Court  of 
Chancery,  where  the  bill  was  retained  until  after  the  trial 
of  the  ejectment,  and  security  had  already  been  given  there 
to  the  amount  of  40/.(c)  In  like  manner,  if  the  plaintiff's 
lessor  should  die  pending  the  action,  it  seems  that  the 
Court,  although  they  cannot  stay  the  proceedings  t'n  toto, 
will  not  suffer  the  suit  to  proceed,  unless  security  be  given 
for  the  costs. (d)  And  when  the  lessor  is  unknown  to  the 
defendant,  the  latter  may  demand  an  account  of  his  resi- 
dence, or  place  of  abode,  from  the  lessor's  attorney,  and 
if  he  refuse  to  give  it,  or  give  a  fictitious  account  of  a 
person  who  cannot  be  found,  proceedings  will  be  staid  until 
security  for  the  costs  be  given.(e)  But  these  are  the  ut- 
most limits  to  which  the  Courts  will  go  in  granting  rules  of 
this  nature  ;  and  an  application  has  been  refused,  founded 
on  the  poverty  of  the  lessor,(/)  and  also  one  in  which  it 
appeared  that  an  ejectment  had  previously  been  brought  in 
another  Court  and  abandoned,  and  that  the  lessor  had  been 
obliged  to  give  security  in  the  first  ejectment,  because  his 
residence  was  then  unknown. (g)  The  practice  of  grant- 
ing these  rules  originated  in  the  Court  of  King's  Bench,  and 


(a)  JVoJfce  v.  Windham,  Stran.  694.  (d)  Thruttout,  d.  Turner,  v.  Grey, 

Throgmorton,    d.   Miller,    v.    Smith,  Stran.  1066.     Ante,  246. 

Stran.  932.   Anon.  1  Wils.  130.  Anon.  («)  Tidd't  Prac.  476,  7. 

1  Cowp.  128.     Appendix,  No.  43.  (/)  Goodright,  d.  Jones,  v.  Tlirutt- 

(6)  B.  N.  P.  111.  Appandix,  No. 44.  out,  Cas.  Pr.  C.  P.  16. 

(c)   Dtnn,    d.    Lucca,   v.   FtUford,  (g)  Doe,  d.  6'e%,  v.  Alttan.  1  T.R. 

Burr.  1177.  4V1. 


OF  STAYING  PROCEEDINGS.  319 

were,  indeed,  at  first,  entirely  confined  to  cases  of  infant 
lessors,(A) 

The  proper  time  to  take  out  a  summons,  or  move  the 
Court  for  this  rule,  is  after  plea  pleaded.(t) 

The  next  case  in  which  the  Courts  interfere  to  stay  the 
proceedings,  is  when  the  costs  of  a  prior  ejectment  upon 
the  same  title,  or  between  the  same  parties,  are  left  un- 

paid-0') 

For  some  time  after  the  introduction  of  this  practice,  the 
Court  would  not  interfere  unless  the  two  ejectments  were 
brought  in  the  same  Court  ;(£)  but  this  limitation  no  longer 
prevails,  and  it  is  now  immaterial  in  what  court  the  first 
ejectment  is  brought.(/)  Formerly,  also,  there  was  a  di- 
versity of  opinion,  whether  the  proceedings  could  be  staid 
where  the  two  ejectments  were  brought  (without  fraud,  or 
collusion,)  upon  different  demises,  although  upon  the  same 
title  ;(m)  but  it  is  now  of  no  consequence  whether  the  two 
ejectments  are  brought,  upon  the  demise  of  the  same  or 
different  persons,  against  all  or  some  of  the  same  parties, 
or  for  the  same  or  different  premises,  provided  they  are 
brought  upon  the  same  title,  and  for  the  recovery  of  part 
of  the  same  estate.  Thus,  proceedings  have  been  staid 
where  one  of  the  lessors  of  the  plaintiff  in  the  first  action 
died  before  the  commencement  of  the  second  ;  where  in 


(A)  Tlmatout,  d.  Dunham,  v.  Per-  7  Mod.  420.      Anon.    1    Salk.  265. 

rival,  Barn.  183.  Holdfast,  d.   Halttrsley,   v.    Jackson, 

(i)  2  Sell.  Prac.  139.  Barn.  133.   Doe,  A.  Chadieick,  ».  Law, 

(j)  Append.  No.  46.  W.  Blk.   1158.     Doe,   d.    Walker,   r. 

(*)  Justine  v.  Hood,   1  Sid.  279.  Sleplitnson,  3  B.  &.  P.  22. 

Tredway  v.  Harbcrt,  Comb.  106.  (m)  Short  v.  King,   Stran.  681. 

(0  Doe,  d.  HamiUo?\,  v.  Athcrly,  Tredway  v.  Harbert,  Comb.  106. 


320  OF  STAYING  PROCEEDINGS. 

the  second  ejectment  two  trustees  were  added  to  the  lessors ; 
where  part  of  the  lands  were  occupied  by  new  tenants ; 
where  the  second  action  was  between  the  heir  of  the  plain- 
tiff's lessor,  and  the  heir  of  the  defendant  in  the  first  ac- 
tion. (TO)  And  in  a  case,  where  the  second  ejectment  was 
brought  by  the  lessee  of  an  insolvent  debtor,  who  had  been 
the  lessor  of  the  plaintiff  in  the  first  action,  and  it  appeared 
that  the  assignment  was  fraudulent  to  evade  the  payment  of 
the  costs,  the  Court  (without  entering  into  the  point  whether, 
in  a  fair  case,  the  assignee  of  an  insolvent  debtor  shall  be 
called  upon  for  former  costs,  before  he  be  suffered  to  bring 
a  new  ejectment  on  the  title  of  his  principal,)  made  the  rule 
absolute  to  stay  the  proceedings  until  the  costs  of  the  first 
action  were  paid.(w) 

A  distinction  was  also  formerly  taken  as  to  the  situation 
of  the  parties  in  the  different  actions,  and  it  was  holden, 
that  if  the  defendant  in  the  second  ejectment  had  been  the 
plaintiff's  lessor  in  the  first,  the  proceedings  should  not  be 
staid  :(o)  but  this  doctrine  is  now  also  exploded,  and  the 
change  of  situation  in  the  parties  is  immaterial.(/>)  The 
rule  will  also  be  granted,  whether  the  merits  be  decided  in 
the  former  action,  or  whether  a  judgment  of  nonsuit,  or  of 
non-pros,  be  given;  nor  is  the  length  of  time  which  elapses 
between  the  two  actions  any  bar  to  the  rule ;  for  many  good 
reasons  may  exist  for  such  delay,  as  the  poverty  of  the  other 
party,  or  a  wish  to  end  the  controversy.^) 


(m)  Doe,  d.  Hamilton,  v.  Hatherly,  (o)  Roberts  v.  Cook,  4  Mod.  379. 
Stran.  1152.     Thrustoul,  d.  Williams,  (p)  Thrustoul,  d.  Williams,  v.  Hold- 
er. Holdfast,  6  T.  R.  223.    Keene,  d.  fast,  6T.  R.  223. 
Angel,  v.  Angel,  6  T.  R.  740.    Doe,  d.  (q)   Dence   v.   Doble,   Comb    110. 
Feldon,  v.  Roe,  8  T.  R.  645.  Keene,  d.  Angel,  v.  Angd,  6  T.  R.  740. 

(M)  Doe,  d.  Chadwick,  v.  Law,  W.  Anon.  Satk.  255. 
Blk.  1180. 


OF  STAYING  PROCEEDINGS.  321 

The  Courts  will  likewise  stay  the  proceedings  in  a  se- 
cond ejectment  until  the  costs  of  a  former  one  be  paid,  if 
the  conduct  of  the  party,  against  whom  the  application  is 
made,  lias  been  vexatious  or  oppressive,  although  he  is  not 
liable  to  the  costs  of  the  first  action.  Thus,  where  the  les- 
sor of  the  plaintiff  in  the  second  action  was  also  the  lessor 
in  the  first,  and  had  refused,  after  the  appearance  of  the  de- 
fendant in  such  first  action,  to  enter  into  the  consent  rule, 
whereby,  although  nonsuited  for  want  of  a  replication,  he 
was  exempted  from  the  costs  of  the  defendant's  appearance, 
the  Court  would  not  let  him  proceed  in  the  second  eject- 
ment until  he  had  satisfied  the  defendant  for  the  expenses 
of  such  first  appearance. (r)  And,  upon  the  same  prin- 
ciple, where  the  first  ejectment  was  on  the  demise  of  the 
husband  and  wife,  but  the  husband  alone  entered  into  the 
consent  rule,  and  judgment  was  given  therein  in  the  Com- 
mon Pleas  for  the  defendant,  (which  judgment  was  after- 
wards affirmed  in  the  King's  Bench  and  the  House  of  Lords,) 
and  after  the  death  of  the  husband,  the  wife  brought  a  se- 
cond ejectment  on  her  own  demise  ;  the  Court  would  not 
suffer  her  to  proceed  until  the  costs  of  the  first  ejectment 
were  paid,  saying,  "  We  are  not  going  to  compel  the  les- 
sor to  pay  the  costs,  but  only  to  prevent  her  being  vexa- 
tious."^) 

It  was  once,  indeed,  holden,  that  the  proceedings  in  a 
second  ejectment  ought  not  in  any  case  to  be  staid  for  non- 
payment of  the  costs  in  the  first  action,  if  costs  were  not  of 
right  payable  to  the  party  applying ;(/)  and  that  it  was  in 
nil  cases  necessary  to  show,  that  the  party  against  whom 

(r)  Smith,  d.  Ginger,  v.  Barnardit-  (1)  Thmsloiit,  <!.  Parke,  r.  Trouhlt- 
fon,  W.  Blk.  904.  tome,  Stran.  1W9.  S  C.  And.  297. 

(/)  Doe,  d.   iriUumu,  v.  Motherly, 
?«ran.  1152. 

41 


322  OF  STAYING  PROCEEDINGS. 

the  application  was  made,  had  acted  vexatiously,  or  op- 
pressively, before  the  rule  could  be  obtained.  But  these 
maxims  have  long  given  place  to  more  just  and  liberal  prin- 
ciples.^) 

In  a  late  case,  the  Court  ordered  the  proceedings  in  a 
second  ejectment  to  be  staid  until  the  costs  of  an  action  for 
mesne  profits,  (upon  which  the  lessor  in  the  second  eject- 
ment, who  had  been  the  defendant  in  the  first,  had  brought 
a  writ  of  error.)  as  well  as  the  costs  of  the  first  ejectment, 
were  paid.(-D)  But  the  Court  will  not  extend  the  rule  to  in- 
clude the  damages  recovered  in  such  action  for  mesne  pro- 
fits, however  vexatious  the  proceedings  of  the  party  may 
have  been. (a?) 

The  Courts  will  not  stay  the  proceedings  in  the  second 
action,  where  the  party  against  whom  the  application  is 
made,  is  already  in  custody  under  an  attachment  for  non- 
payment of  the  costs  of  the  first  action.(a;) 

There  is  no  particular  stage  of  the  proceedings  at  which 
it  is  necessary  to  move  the  Court,  or  take  out  a  summons 
for  this  rule.  It  will  be  granted  even  before  the  defendant 
has  appeared  :  and  it  always  should  be  moved  for  as  early 
in  the  action  as  it  conveniently  can  be.  Where,  however, 
satisfactory  reasons  were  given  to  the  Court,  why  the  ap- 
plication was  not  made  at  an  earlier  stage  of  the  suit,  the 
Court  ordered  the  proceedings  to  be  stayed  until  the  costs 
of  a  former  ejectment  were  paid,  after  a  notice  of  trial  had 
been  given,  and  the  lessor  of  the  plaintiff  had  been  at  the 

(u)  Stort  v.  Kin%,  Stran.  681.  (w)  Doe,  d.  Church,  v.  Barclay,  16 

(r)    Doe,  d.   Pinclutrd,   T.   Roe,  4    East,  233. 

East,  586.  (x)  Benn,  d.  Mortimer,  v.  Derm. 

Barn.  180. 


OF  STAYING  PROCEEDINGS. 

expence  of  bringing  his  witnesses  to  the  place  of  trial. (y) 
The  reasons  assigned  to  the  Court  were,  that  the  cause  was 
so  clear  at  the  last  trial,  and  the  parties  had  delayed  so 
long  commencing  their  second  action,  (four  years,)  that  the 
defendants  did  not  think  them  in  earnest  until  notice  of  trial 
was  given,  and  that  the  defendant  then  proceeded  to  tax 
his  costs,  in  order  to  ground  the  application,  which  other- 
wise he  would  not  have  done,  the  lessor  of  the  plaintiff  be- 
ing insolvent. 

The  Courts  will  also  stay  proceedings  in  .an  ejectment 
when  the  lessor  of  the  plaintiff  has  two  actions  depending, 
at  the  same  time,  for  the  same  premises,  in  different  courts  ; 
and  the  proceedings  in  the  one  action  will  then  be  staid 
until  the  other  action  is  determined.(z)  And  in  a  case, 
where  the  claimant  brought  thirty-seven  separate  eject- 
ments for  thirty-seven  different  houses,  all  of  which  depend- 
ed on  the  same  title,  the  Court  said  it  was  a  scandalous 
proceeding,  staid  the  proceedings  in  thirty-six  of  them,  and 
made  a  rule  that  they  should  abide  the  event  of  the  thirty- 
»eventh.(a) 

When  the  party,  against  whom  a  verdict  in  ejectment  has 
been  obtained,  brings  a  writ  of  error,  and  pending  that  writ, 
commences  a  second  ejectment,  the  Court  will  order  the 
proceedings  in  the  second  action  to  be  stayed  until  the  writ 
of  error  is  determined  ;  and  it  seems,  also,  that  if  it  do  not 
appear  to  the  Court,  that  the  writ  of  error  was  brought  with 
some  other  view  than  to  keep  off  the  payment  of  costs,  pro- 
ceedings will  be  stayed  until  the  costs  of  the  first  action  are 


Cv)  Doe  v.  Law,  W.  Blk.  1158.  (a)  2  SHI.  Pra<\  H4.     Jute,  230. 

(a)  Thnisttntt,  ci.  Parke,  v.  Trouble- 
tomt,  And.  297.     S.  C.  Stran.  1QH9 


'324  OF  STAYING  PROCEEDINGS. 

paid,  notwithstanding  such  costs  are  suspended  by  the  writ 
of  error. (6) 

By  the  statute  7  Geo.  II.  c.  20.  s.  1 .  it  is  enacted,  "  that 
when  an  ejectment  is  brought  by  a  mortgagee,  his  heirs, 
&c.  for  the  recovery  of  the  possession  of  the  mortgaged 
premises,  and  no  suit  is  depending  in  any  court  of  equity, 
for  the  foreclosing  or  redeeming  of  such  mortgaged  pre- 
mises, if  the  person  having  a  right  to  redeem,  having  been 
made  the  defendant  in  the  action,  shall  at  any  time,  pend- 
ing the  suit,  pay  to  the  mortgagee,  or  in  case  of  his  refusal, 
bring  into  court,  all  the  principal  moneys,  and  interest  due 
on  the  mortgage,  and  also  costs  to  be  computed  by  the 
Court,  or  proper  officer  appointed  for  that  purpose  ;  the 
same  shall  be  deemed  and  taken  to  be  a  full  satisfaction  and 
discharge  of  the  mortgage,  and  the  Court  shall  discharge 
the  mortgagor  of  and  from  the  same  accordingly."  By  the 
third  section,  the  act  is  not  to  extend  to  any  case  where 
the  person,  against  whom  the  redemption  is  prayed,  shall 
insist,  either  that  the  party  praying  a  redemption  has  not  a 
right  to  redeem,  or  that  the  premises  are  chargeable  with 
other  sums  than  what  appear  on  the  face  of  the  mortgage, 
or  are  admitted  by  the  other  side,  nor  to  any  case  where 
the  right  of  redemption  in  any  cause,  or  suit,  shall  be  con- 
troverted or  questioned,  by  or  between  different  defendants 
in  the  same  cause,  or  suit. 

An  application  for  a  rule  to  stay  proceedings  under  this 
statute,(c)  must  of  course  be  made  before  execution  exe- 
cuted, and  must  be  accompanied  by  an  affidavit  that  no  suit 
in  equity  is  depending.  The  party  should  also  appear  to 
the  action  before  the  application  is  made,  for  the  Court* 

(6)  Fenwitk  v.   Growenor,   1  Salk.         (c)  Append.  No.  46. 
268.     Grumble  T  Bodily,  Stran.  664. 


OP  STAYING  PROCEEDINGS.  325 

have  no  power  to  interfere  under  the  statute  until  after  ap- 
pearance. But  where  the  premises  were  in  possession  of 
a  tenant  of  the  mortgagor,  who  neglected  to  appear  to  the 
action,  in  consequence  of  which  the  mortgagee  recovered 
possession  of  the  premises  under  a  judgment  by  default 
against  the  casual  ejector,  the  Court  of  Common  Pleas  (if 
the  other  party  had  not  consented  to  take  what  was  due 
upon  the  mortgage,  and  restore  the  possession)  would  have 
set  the  judgment  and  execution  aside,  in  order  to  let  the 
mortgagor  in  as  defendant,  and  place  him  in  a  condition  to 
apply  to  the  Court  to  stay  the  proceedings  on  the  terms  of 
the  statute.(d) 

In  a  case  in  the  Court  of  King's  Bench,  where  a  mort- 
gagee made  a  will,  leaving  all  his  property  to  executors 
upon  certain  trusts,  and  died,  and  his  will  was  disputed  by 
his  heir  in  the  Prerogative  Court,  but  by  the  sentence  of 
that  court  established,  and  letters  testamentary  in  conse- 
quence granted  to  the  executors  ;  after  which  grant  the  heir 
appealed  to  the  Court  of  Delegates  against  the  sentence  of 
the  Prerogative  Court,  pending  which  appeal  the  executors 
assigned  the  mortgage  to  the  lessor  of  the  plaintiff,  who 
also,  pending  the  appeal,  brought  an  ejectment  against  the 
mortgagor  for  the  recovery  of  the  mortgaged  premises,  to 
which  ejectment  the  mortgagor  did  not  appear,  but  suffered 
judgment  to  go  by  default  against  the  casual  ejector.  Upon 
an  application  on  the  part  of  the  mortgagor  (accompanied 
by  an  affidavit  of  the  facts)  to  stay  the  execution  until  the 
determination  of  the  appeal,  upon  the  ground,  that  the  title 
of  the  lessor  would  be  invalidated,  provided  the  appeal 
were  given  in  favour  of  the  heir,  and  that  the  defendant 
might  then  perhaps  be  compelled  to  pay  the  mortgage 

(<*)  Doe,  d.  Tvbb,  r.  Roe,  4  Taunt.  887, 


326  OF  STAYING  PROCEEDINGS. 

money  twice,  the  Court  made  the  following  order :  "  That 
the  execution  obtained  by  the  lessor  of  the  plaintiff*,  in  this 
action  of  ejectment,  be  stayed  until  such  time  as  the  appeal, 
now  pending  before  the  Court  of  Delegates,  be  determined, 
upon  the  defendant  vesting  the  mortgage  money,  interest, 
and  costs,  to  be  taxed  by  the  Master,  in  Exchequer  bills, 
and  depositing  such  Exchequer  bills  in  the  hands  of  the 
signer  of  the  writs  in  this  court."(e) 

A  rule  upon  this  statute  has  been  granted  after  an  agree- 
ment, on  the  part  of  the  mortgagor,  to  convey  the  equity  of 
redemption  to  the  mortgagee,  where  no  tender  of  a  deed  of 
conveyance  for  execution  had  been  made  to  the  defendant, 
or  bill  in  equity  filed  ;(/)  but  where  it  appeared  that,  sub- 
sequently to  the  defendant's  agreement,  several  applications 
had  been  made  to  him,  but  without  effect,  to  complete  the 
purchase,  the  Court  refused  to  stay  the  proceedings. (g) 

In  a  case  where,  upon  an  application  by  the  mortgagor 
to  stay  proceedings  under  this  statute,  it  appeared  that  he 
had  also  taken  up  money  from  the  mortgagee  upon  his  bond, 
the  Court  granted  the  rule  upon  the  payment  of  the  mort- 
gage a  id  interest  only,  the  bond  debt  not  being  a  lien  upon 
the  lands ;  but  it  seems,  that  when  in  such  case  the  heir  is 
bound  by  the  bond,  and  the  mortgagor  dies,  the  heir  must 
discharge  the  bond  debt,  as  well  as  the  mortgage.(^)  Where, 
however,  the  bond  was  a  lien  on  the  estate,  and  the  mort- 
gagee had  given  notice  to  the  mortgagor,  that  he  should  in- 

(e)  Doe,  d.  Mnyhew,  v.  Erlam,  MS.  (g)  GoodtUle,  d.  Taynun,  v.  Pope, 

AI.  T.  181 1.     The  court  did  not  in  7  T.  R.  185. 

this  case  advert  to  the  circumstance  (/i)  Bingham,  d.   Lane,  v.    Gregg, 

that  the  mortgagor,  who   made  the  Barn.  182.      Archer,   d.   Hankey,   v. 

application,  had  not  appeared  to  the  Snapp,  And.  341.     S.  C.  Stran.  1107. 

action.  and  the  cotes  there  cited. 

CO  Skinner  v.  Stacey,  1  Wib.80. 


OF  STAYING  PROCEEDINGS.  327 

tist  upon  payment  of  the  money  due  upon  it,  the  Court  re- 
fused to  stay  the  proceedings,  upon  payment  of  the  mort- 
gage money  only.(i)  Where  also  other  mortgages,  although 
upon  different  premises,  existed  between  the  defendant  and 
the  plaintiff's  lessor,  the  Court  would  not  stay  proceedings 
under  this  statute,  upon  the  payment  of  the  sum  due  upon 
one  of  the  mortgages  only.(j) 

If,  upon  a  motion  of  this  nature,  any  doubt  exist  as  to 
the  amount  of  what  is  due  between  the  parties,  the  Court 
of  King's  Bench  will  refer  the  case  to  the  master,  and  the 
Court  of  Common  Pleas  to  the  prothonotary,  whose  res- 
pective duty  it  is  to  tax  the  costs ;  and  in  a  case  where  an 
affidavit  was  made,  that  the  mortgagee  had  been  at  great 
expense  in  necessary  repairs  of  part  of  the  premises  in  his 
possession,  (the  ejectment  being  brought  for  the  residue,) 
and  it  was  prayed,  that  the  prothonotary  might  be  directed 
to  make  allowance  for  such  repairs ;  the  Court  said,  that 
the  rule  must  follow  the  words  of  the  statute,  and  that  the 
prothonotary  would  make  just  allowances  arid  deductions. (A;) 
If,  however,  after  taxation,  the  debt  and  costs  are  not  paid, 
the  lessor  must  proceed  in  the  suit,  and  cannot  have  an  at- 
tachment^/) 

The  cases  in  which  the  Courts  have  stayed  the  proceed- 
ings under  stat.  4  Geo.  II.  c.  28.  have  already  been  con- 
sidered.(m) 

(i)  Felton  v.  Ash,  Barn.  177.    It  is  ejectment ;  but  it  is  difficult  to  recon- 

aot  stated  in  the  report  of  the  case,  cile  the  decision  either  to  the  letter  or 

from  what  circumstance  the  bond  be-  spirit  of  the  statute,  unless  they  wen 

came  a  lien  on  the  estate.  also  contained  in  the  declaration. 

(j)  Roe,  d.  Kaye,  v.  Soley,  W.  Blk.        (t)  Goodrigfd  v.  Moore,  Barn.  176. 
726.     It  does  not  appear  from  the  re-         (/)  Hand  v.  Dincly,  Stran.  1220. 
j>ort  of  this  case,  that  the  other  mort-         (m)  JltUc,  156,  &c.  Append.  No.  47. 
gaged  premises  were  included  in  the 


CHAPTER  XIII. 


OK  THE  ACTION  FOR  MESNE  PROFIT? 


WHILST  the  action  of  ejectment  remained  in  its  origi- 
nal state,  and  the  ancient  practice  prevailed,  the  measure 
of  the  damages  given  by  the  jury,  when  the  plaintiff  re- 
covered his  term,  were  the  profits  of  the  land  accruing  dur- 
ing the  tortious  holding  of  the  defendant.  But  upon  the 
introduction  of  the  modern  system,  an  alteration  took  place 
in  this  particular ;  and  as  the  proceedings  are  now  alto- 
gether fictitious,  the  damages  assessed  are  only  nominal,  and 
do  not  include  the  real  injury  sustained  by  the  claimant 
from  the  loss  of  his  possession.  When,  therefore,  this  al- 
teration took  place,  it  became  necessary  to  give  another 
remedy  to  the  lessor  for  these  damages ;  and  this  was  ef- 
fected by  a  new  application  of  the  common  action  of  tres- 
pass m  et  armis,  generally  termed  an  action  for  me  sne  pro- 
Jits  :(n)  in  which  action,  the  plaintiff  complains  of  his  ejec- 
tion and  loss  of  possession,  states  the  time  during  which  the 
defendant  (the  real  tenant)  held  the  lands  and  took  the 
rents  and  profits,  and  prays  judgment  for  the  damages  which 
he  has  thereby  sustained. 

It  has  been  said,  that  a  lessor  in  ejectment  may,  if  hr 
(n)Re«r.  E.L.  4vol.  169. 


OF  THE  ACTION  FOR  MESNE  PROFITS.  329 

please,  waive  the  trespass,  and  recover  the  mesne  profits 
in  an  action  for  use  and  occupation  ;(o)  but  this  election 
must  be  limited  to  the  profits  accruing  antecedently  to  the 
time  of  the  demise  in  the  ejectment ;  for  the  action  for  use 
and  occupation  is  founded  on  contract,  the  action  of  eject- 
ment upon  wrong,  and  they  are,  therefore,  wholly  incon- 
sistent with  each  other  when  applied  to  the  same  period  of 
time;  since  in  the  one  action  the  plaintiff* treats  the  defen- 
dant as  a  tenant,  and  in  the  other  as  a  trespasser. (p)  When, 
however,  a  tenant  holds  over  after  the  expiration  of  the 
landlord's  notice  to  quit,  the  landlord,  after  a  recovery  in 
ejectment,  may  waive  his  action  for  mesne  profits,  and 
maintain  debt  upon  the  4  Geo.  II.  c.  28.  against  the  tenant, 
for  double  the  yearly  value  of  the  premises  during  the  time 
the  tenant  so  holds  over:  for  the  double  value  is  given  by 
way  of  penalty,  and  not  as  rent.(^) 

The  action  for  mesne  profits  may  be  brought  pending  a 
writ  of  error  in  ejectment,  and  the  plaintiff  may  proceed  to 
ascertain  his  damages,  and  to  sign  his  judgment ;  but  th€ 
Court  will  stay  execution  until  the  writ  of  error  is  deter- 
mined.(r) 

The  action  is  bailable  or  not,  at  the  discretion  of  the 
court,  or  judge,  and  when  an  order  for  bail  is  made,  the 
recognisance  is  usually  taken  in  two  years  value  of  the  pre- 
mises, but  this  is  also  discretionary.^) 

(o)  GooHlitle  T.  Worth,  Doug.  584.  debt  upon  the  11  Geo.  II.  c.  19    for 

Doe,  d.  Cheney,  v.  Batten,  Cowp  2-43.  double  rent,  but  it  seeing  the  better 

(p)  Birch  v.  Wright,  \  T  R.  378.  opinion  that  he  is  not.    Ante,  143. 

(q)    Timming*  v.  Ruwliion,   Burr.  (r)  Harris  v.  Allen,  Cas    Prac.  C. 

1603      It  is  not  jet  settled  whether,  P.  46.    Donford  v.  £//£»,  12  Mod.  138. 

\>  hen  tho  ejectment  is  founded  upon  (»)    Hunt    v.    IJinl.<nn.    Barn.    86- 

a  notice  to  quit  given  by  the  tenant,  1  Sell.  Prac.  84. 
the  landlord  is  entitled   to  maintain 

42 


330  OF  THE  ACTION 

The  lessor  of  the  plaintiff  in  the  antecedent  action  of 
ejectment,  is  of  course  the  person  concerned  in  interest, 
but  he  may  bring  his  action  for  mesne  profits  either  in  his 
own  name,  or  that  of  his  nominal  lessee. (t)  The  former, 
however,  is  the  more  advantageous  method  ;  as  he  may 
then,  upon  proper  proofs,  recover  damages  for  the  rents 
and  protits  received  by  the  defendant,  anterior  to  the  time 
of  the  demise  in  the  ejectment,  which  cannot  be  done  in  an 
action  at  the  suit  of  the  nominal  plaintiff,(«)  and  the  courts 
will  not  slay  the  proceedings  until  security  be  given  for  the 
costs,  which  will  be  done  when  the  action  for  mesne  profits 
is  brought  in  the  name  of  such  nominal  lessee. (v) 

It  was  once,  indeed,  doubted  whether  this  action  could  be 
maintained  in  the  name  of  the  plaintiff  in  the  ejectment,  after 
a  judgment  by  default  against  the  casual  ejector,  because,  be- 
ing a  possessory  action,  an  entry  must  be  either  proved  or 
admitted,  neither  of  which,  it  was  argued,  could  in  such  case 
be  done  ;  but  it  is  now  settled,  that  there  is  no  distinction 
between  a  judgment  in  ejectment  upon  a  verdict  and  one 
by  default,  the  right  of  the  claimant  being  in  the  one  case^ 
tried  and  determined,  and  in  the  other  confessed. (w) 

A  tenant  in  common,  who  has  recovered  in  ejectment, 
may  maintain  an  action  for  mesne  profits  against  his  com- 
panion.(x) 


(A  It  may  here  be  incidentally  ob-         (u)  B.  N.  P.  87. 
served,  that  when  the  ancient  prac-         (v)  Say.  Costs.  126. 
tic  e  is  resorted  to,  and  the  plaintiff  in         (ir)   JJslin   v.   Packer,    Burr.  666. 

the  ejectment  is  a  real  person,  the  Jeffries  v.  Dyson,  btran.  960. 
court  will  not   permit  him  to  release         (T)  Goodtille  v.  Tombs,  3  Wils.  118. 

the  artion   for  mnsne  profits,  should  Cutting  v.  Derby,  W.  Black.  1077. 
the  Irssor  bring;  it  in  his  name.  (Close's 
case,  Skin.  247.  Anou.  balk.  260.) 


FOR  MESNE  PROFITS.  331 

As  the  action  for  mesne  profits  is  an  action  of  trespass,  it 
cannot  be  maintained  against  executors  or  administrators, 
for  the  profits  accruing  during  the  lifetime  of-  die  testator 
or  intestate  ;  nor  will  a  court  of  equity  interfere  to  enforce 
the  payment  of  them  against  personal  representatives,  when 
the  lessor  has  been  deprived  of  his  legal  remedy  by  the  mere 
accident  of  the  defendant's  death.  But,  where  the  lessor 
was  delayed  from  recovering  in  ejectment  by  a  rule  of  the 
court  of  law,  and  by  an  injunction  at  the  instance  of  the  de- 
fendant, who  ultimately  failed  both  at  law  and  in  equity, 
the  Court  decreed  an  account  of  the  mesne  profits  against 
hft  (the  defendant's)  executors. (t/) 

It  is  also  doubtful,  whether  the  action  can  be  maintained 
against  a  tenant  for  the  holding  over  of  his  undertenants, 
for  it  should  be  brought  against  the  person  in  actual  pos- 
session and  trespassing.(z)  But  any  person  so  found  in 
possession,  after  a  recovery  in  ejectment,  is  liable  to  the 
action :  and  it  is  no  defence  to  say  that  he  was  upon  the 
premises  as  the  agent,  and  under  the  license  of  the  defend- 
ant in  ejectment,  for  no  man  can  license  another  to  do  an 
illegal  act.  But  the  measure  of  the  damages  in  such  case 
will  not  be  the  whole  mesne  profits  of  the  lands,  but  will 
depend  upon  the  time  such  person  has  had  them  in  his 
occupation,  together  with  the  other  circumstances  of  the 
case. (a) 

In  the  case  of  Ketch,  d.  fParne,  v.  Hall,(b)  where  it  was 
decided  that  a  mortgagee  might  recover  in  ejectment,  with- 
out a  previous  notice  to  quit,  against  a  tenant  claiming 

(y)  Pulteney  v.  Warren,  6  Ves.  J.  (a)  Girdlestonc  v.  Porter,  K.  B  M. 

73  T.  39  Geo.  III.  Wood.  L.  and  T.  611. 

(«)  Burnt  v.  Richardson,  4  Taunt  (A)  Doug.  21. 
720. 


332  OF  THE  ACTION 

under  a  lease  from  the  mortgagor,  granted  after  the  mort- 
gage without  the  privity  of  the  mortgagee,  it  was  asked  by 
the  counsel  for  the  defendant,  if  such  mortgagee  might  also 
maintain  an  action  against  the  tenant  for  mesne  profits, 
which  would  be  a  manifest  hardship  and  injustice  to  the 
tenant,  as  he  would  then  pay  the  rent  twice.  Lord  Mans- 
field, C.  J.  gave  no  opinion  on  that  point  ;  but  said,  there 
might  be  a  distinction,  for  the  mortgagor  might  be  consi- 
dered as  receiving  the  rent  in  order  to  pay  the  interest,  by 
an  implied  authority  from  the  mortgagee,  until  he  deter- 
mined his  will.(c) 

The  declaration  in  the  action  for  mesne  profits  must  ex- 
pressly state  the  different  parcels  of  land  from  which  the 
profits  arose,  or  the  defendant  may  plead  the  common  bar. 
It  should  also  state  the  time  when  the  defendant  broke  and 
entered  the  premises  and  ejected  the  plaintiff,  the  length 
of  time  during  which  he  so  ejected  him,  and  the  value  of 
the  mesne  profits  of  which  he  deprived  him  ;  and  a  decla- 
ration which  does  not  contain  these  statements  will  be 
holden  ill  on  special  demurrer  :  but  the  defect  is  cured 
by  verdict,  or  after  judgment  by  default  and  writ  of  in- 
quiry executed,  by  the  operation  of  the  stat.  4  Ann.  c. 


In  the  statement  of  tlie  damages  in  the  declaration  the 
costs  of  the  ejectment  may  be  included,  whether  the  judg- 
ment be  against  the  casual  ejector,  or  against  the  tenant  or 
landlord  ;  and  when  the  judgment  is  against  the  casual 
ejector  for  want  of  an  appearance,  the  costs  are  invariably 
included  in  the  statement  of  the  damages,  though  it  ap- 


(c)  El  vide  4  Ann.  c.  16.  s.  10.  (d)  Higgins  v.  Uiglifield,  13  East, 

407. 


FOR  MESNE  PROFITS.  333 

pears  more  prudent,  for  reasons  already  assigned  in  other 
cases,  to  oinit  them.(e) 

The  general  issue  is  not  guilty  ;  and  if  the  plaintiff  de- 
clare against  the  defendant,  for  having  taken  the  mesne 
proh'ts  for  a  longer  period  than  six  years  before  action 
brought,  the  defendant  may  plead  the  statute  of  limitations, 
namely,  not  guilty  within  six  years  before  the  commence- 
ment of  the  suit,  and  thereby  protect  himself  from  all  but 
six  years. (f)  Bankruptcy  is  no  plea  in  bar  to  this  action, 
for  the  plaintiff  does  not  demand  the  value  of  the  land  only, 
but  the  whole  damages  sustained  by  the  tort ;  and  as  the 
damages  are  uncertain,  they  cannot  be  proved  under  a  com- 
mission of  bankruptcy,  but  must  be  ascertained  by  a  jury 
under  all  the  circumstances  of  the  case.(g)  The  stat.  of 
49  Geo.  III.  c.  121.  s.  9.  which  directs,  that  all  persons 
who  shall  have  given  credit  upon  good  and  valuable  con- 
sideration bonajide,  for  any  money  whatsoever,  which  is  not 
due  at  the  time  of  the  bankruptcy,  shall  be  admitted  to 
prove  such  debts,  &c.  has  been  holden  not  to  extend  ta 
damages  recoverable  in  an  action  for  mesne  profits. (A) 

As,  also,  this  action  is  for  a  tortious  occupation,  the  de- 
fendant cannot  pay  money  into  Court.(i) 

It  was  formerly  holden,  that  if  the  action  for  mesne  pro- 
fits were  brought  in  the  name  of  the  claimant  in  the  eject- 
ment, or  after  a  judgment  by  default  against  the  casual 
ejector,  the  defendant  was  at  liberty  to  controvert  the 
plaintiff's  title  ;  because  the  plaintiff  in  the  action  for  mesne 

(e)  Gulliver  v.  Drinktrater,  2  T  R.  (/)  B.  N.  P.  88. 

261.    Doe  v.  Dorics,  1  E*p.  358,  et  fc)  GoodtUIe  v.  Worth,  Donp.  684. 

vide  t'tterton  v.   Vcrnon,  3  T.  R.  639.  (A)  JUoggridgt  v.  Darts,  1  U  hit.  16. 

47.    .4n<e,  302.  (»)  Holdfast  T.  Morris,  2  \\\\%.  IIS. 


334  OF  THE  ACTION 

profits,  in  the  one  case,  and  the  defendant  in  the  other, 
were  not  parties  to  the  record  in  the  previous  ejectment, 
and,  therefore,  no  estoppel  could  arise  either  against,  or  in 
favor  of  either  of  them,  by  such  record. (j)  But  it  is  now 
settled,  that  after  every  recovery  in  ejectment,  the  tenant 
is  estopped  from  controverting  the  title  of  the  plaintiff  in  a 
subsequent  action  for  mesne  profits,  provided  the  plaintiff 
proceed  only  for  the  profits  accruing  subsequently  to  the 
time  of  the  ouster  in  the  ejectment.  If,  however,  he  seek 
to  recover  profits  antecedent  to  the  demise  therein,  or 
bring  his  action  against  a  precedent  occupier,  the  record 
in  the  ejectment  cannot  be  given  in  evidence,  but  the 
plaintiff*  must  prove  his  title  to  the  premises,  from  whence 
the  profits  arose,  to  entitle  him  to  receive  them. (A:) 

He  must,  also,  in  such  case,  prove  an  entry  upon  the 
lands,  though  some  doubt  seems  to  exist  as  to  what  proof 
of  entry  will  be  sufficient.  By  some  it  has  been  said,  that 
the  plaintiff  is  entitled  to  recover  the  mesne  profits  only 
from  the  time  he  can  prove  himself  to  have  been  in  pos- 
session, and  that,  therefore,  if  a  man  make  his  will  and  die, 
the  devisee  will  not  be  entitled  to  the  profits  until  he  has 
made  an  actual  entry,  or,  in  other  words,  until  the  day  of 
the  demise  in  the  ejectment ;  for  that  none  can  have  an  ac- 
tion for  mesne  profits  unless  in  case  of  actual  entry  and 
possession.  Others  have  holden,  that  when  once  an  entry 
has  been  made,  it  will  have  relation  to  the  time  the  title 
accrued,  so  as  to  entitle  the  claimant  to  recover  the  mesne 
profits  from  that  time  ;  and  they  say  that  if  the  law  were 
not  so,  the  Courts  would  never  have  suffered  plaintiffs  in 
ejectments  to  lay  their  demises  back  in  the  manner  they 


(j)  I  Lill.  Prac  Reff.  676.    Jeffries        (K)  Bull.  N.  P.  87.    Jislin  v.  Par- 
r.  Dyson,  Stran.  960.  kin,  Burr.  665.     S.  C.  Barn.  472. 


TOR  MESNE  PROFITS.  335 

now  do,  and  by  that  means  entitle  themselves  to  recover 
profits,  to  which  they  would  not  otherwise  be  entitled. (/) 
The  latter  seems  the  better  opinion ;  but  these  antecedent 
profits  are  now  seldom  the  object  of  litigation,  from  the 
practice  of  laying  the  demise  and  ouster  immediately  after 
the  time  when  the  lessor's  title  accrues.(m)  It  should, 
however,  be  observed,  that  when  a  fine  with  proclama- 
tions has  been  levied,  an  entry  to  avoid  it  will  not,  in  this 
action,  entitle  the  plaintiff  to  the  profits  between  the  time 
of  the  fine  levied,  and  the  time  of  the  entry,  although  they 
probably  may  be  recovered  in  a  court  of  equity.(n) 

It  has  already  been  observed,  that  the  defendant  in  this 
action  is  estopped  from  controverting  the  title  of  the  plain- 
tiff from  the  day  of  the  demise  in  the  ejectment  ;[7]  when, 

(/)  Metcalf  v.  Harvey,  1  Ves.  248,  (n)  Dormer  v.  Forlesme,  3  Atk.  124. 
*).— B.  N.  P  87.  Compere  v.  Hicks,  7  T.  R.  727. 

(m)  Ante,  189. 


[7]  A  recovery  of  nominal  damages  is  no  bar  to  an  action  for  the  mesne 
profits,  and  it  is  unnecessary  to  enter  a  remittilur  damna.  VanAltn  v.  Rogers, 
1  Johns.  Cas.  281. 

The  plaintiff  is  entitled  to  mrsne  profits  from  the  time  of  the  demise  laid  in 
his  declaration  in  ejectment.  Ibid.  But  if  plaintiff  goes  for  the  mesne  profits 
before  the  day  of  the  demise,  defendant  may  controvert  his  title.  2  Burr.  667, 
668. 

If  the  tenant  has  made  improvements,  he  will  not  be  allowed  them  in  an 
ejectment  by  a  devisee,  but  must  resort  to  the  representatives  of  the  devisor. 
Van  Altn  v.  Rogers,  1  Johns.  Cas.  281. 

An  action  for  mesoe  profits  is  an  equitable  action,  and  will  allow  of  every 
kind  of  equitable  defence,  and  it  seems  that  repairs  may  be  liquidated  in  thU 
action.  Murray  v.  Gourerneur,  2  Johns.  Cas.  438. 

The  right  to  mosnc  profits  is  a  necessary  consequence  of  a  recovery  in  eject- 
ment, and  the  defendant  cannot  set  up  a  title  in  bar;  and  even  where  the  de- 
fendant had,  after  the  verdict  in  ejectment,  brought  ejectment  for  the  same 
premises,  and  had  obtained  a  verdict,  he  was  not  permitted  to  set  up  this  se- 
cond verdict  as  a  bar  to  the  action  for  mcsne  profits.  Benson  v.  Matsdvrf,  2 
Johns.  369. 

Aud  iu  the  case  of  Duffield  v.  Stiles,  (2  Dallas,  156.)  where  plaintiff,  after 


336  OF  THE  ACTION 

therefore,  the  plaintiff  seeks  to  recover  only  such  profits  as 
have  accrued  subsequently  to  such  demise,  no  other  evi- 
dence of  his  title  is  required,  than  examined  copies  of  the 
judgment  in  ejectment,  of  the  writ  of  possession  and  of  the 
sheriff's  return  thereon  ;(o)  and  if  the  plaintiff  has  been  let 
into  possession  of  the  premises  by  the  defendant,  an  ex- 
amined copy  of  the  judgment  in  ejectment  only  will  be  suf- 
ficient//?) It  has,  indeed,  been  doubted,  whether  evi- 
dence of  the  writ  of  possession  and  sheriff's  return  is  ever 
necessary,  except  upon  judgment  by  default  against  the 
casual  ejector,  but  it  is,  notwithstanding,  prudent  to  be 
prepared  with  it  in  all  cases,  unless  the  plaintiff  has  been 
let  into  possession  by  the  defendant. (q) 

(o)  Mlin  v.  Parkin,  B.  N  P.  87.  against  the   casual  ejector,   no  rule 

(p)  Culvert  v.  Horsfall,  4  Esp.  67.  having  been  entered  into,  the  lesser 

(q)  Vide  Thorpfv.  Fry,  B.  N.  P  87,  shall  not  maintain  trespass  without  an 

tt  S.  N    P.  693.   (n.  50.)  et  Aislin  v.  actual  entry,  and    therefore  ought  to 

Parkin,  Burr.  665.     The  reason  as-  prove  the  writ  of  possession  executed, 

signed    for   this    distinction    is,   that  But  this  reasoning  is  not  satisfactory  ; 

where  the  judgment  is  had  against  for  if  the  tenant  be  concluded  by  the 

the  tenant   in  possession,  the  defen-  judgment  in  the  ejectment  from  con- 

dant,  by   entering  into    the   consent  troverting     the     plaintiffs     title,    it 

rule,  is  estopped  both  as  to  the  lessor  should  seem    he   is    also   concluded 

and  lessee,  so  that  either  may  main-  from  controverting  his  possession,  for 

tain  trespass  without  an  actual  entry,  possession  is  part  of  his  title, 
but  that  where  the  judgment  is  had 

recovery  in  ejectment,  conveyed  with  warranty  to  the  defendant,  yet  he  was 
allowed  to  maintain  his  action  for  mesue  profits,  for  the  deed  was  no  release 
of  the  action. 

No  defence  can  be  set  up  in  the  action  for  mesne  profits  which  would  have 
been  a  bar  to  the  action  of  ejectment,  and  there  is  no  difference  in  this  respect 
between  a  judgment  by  default  and  a  judgment  after  verdict.  Bacon  v.  Metl, 
3  Johns.  481. 

And  plaintiff  may  recover  as  well  for  the  costs  of  the  ejectment  as  for  the 
use  of  the  land.  Ibid. 

Pending  an  action  of  ejectment,  defendant  gives  up  possession  to  a  third 
person  and  plaintiff  recovers,  such  third  person  is  liable  for  mesne  profits,  the 
recovery  is  conclusive,  and  ha  cannot  set  up  title  in  himself  in  bar.  Jackson  v. 
Stone,  13  Johns.  447. 


FOR  MESNE  PROFITS.  337 

In  addition  to  this  evidence  the  plaintiff  must  prove  the 
length  of  time  that  the  defendant  (or  his  tenant,  if  he  be  the 
landlord,)  has  been  in  possession,  the  value  of  the  mesne 
profits,  and  likewise  the  costs  of  the  ejectment  if  they  be 
included  in  the  declaration  as  damages.  He  must  also 
prove,  when  the  judgment  in  ejectment  is  against  the  casual 
ejector  for  want  of  an  appearance,  and  the  action  for  mesnc 
profits  is  brought  against  the  landlord,  that  the  defendant 
was  landlord  when  the  ejectment  was  brought,  (which  may 
be  done  by  showing  him  to  have  received  the  rents  and 
profits  accruing  subsequently  to  the  day  of  the  demise,)  and 
that  he  received  due  notice  of  the  service  of  the  declara- 
tion in  ejectment  upon  the  tenant  in  possession ;  but  if  the 
landlord  has  subsequently  promised  to  pay  the  rent  and 
costs  of  the  ejectment,  this  proof  will  be  dispensed  with.(r) 

The  plaintiff  will  also  be  entitled  to  give  evidence  of  any 
injury  done  to  the  premises,  in  consequence  of  the  miscon- 
duct of  the  defendant,  provided  such  fact  be  specially  al- 
leged in  the  declaration. 

If  there  be  a  recovery  in  ejectment  against  the  wife,  the 
judgment  will  not  be  evidence  against  the  husband  and  wife, 
in  an  action  for  mesne  profits ;  for  the  wife's  confession  of 
a  trespass  committed  by  her,  cannot  be  given  in  evidence 
to  affect  the  husband,  in  an  action  in  which  he  is  liable  for 
the  damages  and  costs. ( s) 

As  the  action  for  mesne  profits  is  an  action  of  trespass  vi 
et  amis,  the  jury  are  not  confined  in  their  verdict  to  the 
mere  rent  of  the  premises,  although  the  action  is  said  to  b« 

(r)   Hunter  v.   Brills,  3   Campb.        (*)  Z?«m>  *.  fPM«,  7  T.  R.  1 12. 
466.  et  MS 

43 


OF  THE  ACTION 

brought  to  recover  the  rents  and  profits  of  the  estate,  but 
may  give  such  extra  damages  as  they  may  think  the  parti- 
cular circumstances  of  the  case  may  demand. (t)  When  the 
judgment  in  the  ejectment  is  against  the  casual  ejector  for 
want  of  an  appearance,  the  coats  of  the  ejectment  are  gene- 
rally included  in  the  damages  ;  and,  indeed,  the  lessor  of  the 
plaintiff  has  no  other  remedy  in  that  case  for  them.  When 
also  the  ejectment  is  regularly  defended,  the  taxed  costs  may, 
it  seems,  be  recovered  with  the  mesne  profits  as  damages. (w) 
But  this  mode  of  recovering  taxed  costs  is  seldom  resorted 
to ;  and  where  after  a  recovery  in  ejectment,  and  before 
an  action  for  mesne  profits,  the  defendant  became  bank- 
rupt, and  the  lessor  inserted  the  taxed  costs  of  the  eject- 
ment as  damages  in  his  action  for  mesne  profits,  but  the 
jury  did  not  include  them  in  their  verdict  in  executing  a 
writ  of  inquiry  therein,  the  Court  refused  to  set  aside  the 
inquisition  ;  because  the  costs  being  a  liquidated  debt,  the 
plaintiff  might  have  proved  them  under  the  defendant's 
commission  of  bankruptcy,  and  as  he  had  chosen  to  take 
the  chance  of  recovering  in  an  oblique  way  more  than  he 
could  have  recovered  in  a  direct  manner,  and  had  failed, 
the  Court  did  not  think  it  necessary  to  assist  him.(r) 

If  the  plaintiff  in  an  action  for  mesne  profits  recover  les* 
than  forty  shillings,  and  the  judge  do  not  certify  that  the 
title  came  in  question,  the  plaintiff  is  entitled  to  no  more 
costs  than  damages  ;  and  this  is  the  case  whether  the  action 
is  brought  in  the  name  of  the  lessor  of  the  plaintiff  in  the 
ejectment,  or  in  that  of  his  nominal  lessce.(ze) 


(/)  Goodlitlt  Y.  Tombs,  3  Wils.  118.        (r)   Gulliver  v.  Drinkwater,  2  T.  R 

ai.  261. 

(u)  Dot  T.  Davit,  1  Esp.  308.  (ID)  Doe  v.  Davit,  6  T.R.  593.  9.  C. 

1  Esp.  358. 


FOR  MESNE  PROFITS.  339 

If  in  an  ejectment  there  be  a  verdict  for  the  plaintiff,  and 
the  defendant  bring  a  writ  of  error,  and  enter  into  a  recog- 
nisance to  pay  costs  in  case  of  nonsuit,  &c.  pursuant  to 
stat.  16  &  17  Car.  II.  c.  8.  and  he  be  nonsuited,  &c.  the 
defendant  in  error  needs  not  bring  a  scire  facias  or  debt  on 
the  recognisance,  but  may  sue  out  an  elegit,  or  writ  of  in- 
quiry, to  recover  the  mesne  profits  since  the  first  judgment 
in  ejectment.(  a:) 

(:c)  Short  v.  Heath,  2  Cromp.  Prac.  226. 


341 


No.  1. 


Notice  to 


C,_ 

OIK,  quit  by  thr 

I  hereby  give  you  notice  to  quit  and  deliver  up,  a 
on  the  day  of  next,  the  yeart< 

possession  of  the  messuage  or  dwelling  house,  (or 
"  rooms  and  apartments,"  or  "  farm  lands  and 
premises,")  with  the  appurtenances,  which  yon 
now  hold  of  me,  situate  in  the  parish  of 

in  the  county  of 
Dated  the  day  of  18 

Your's,  &c. 

A.  B. 

To  Mr.  C.  D.  (the  tenant  in  possession  :)  or 
(if  it  be  doubtful  who  is  tenant)  To  Mr.  C, 
D.,  or  whom  else  it  may  concern. 

No.  2. 

SlR,  The  like  by 

an  agent  for 

1  do  hereby,  as  the  agent  for  and  on  behalf  of  thelandlord< 
your  landlord  A.  B.,  of  give  you 

notice  to  quit  and  deliver  up,  on  (&c.)  (as  in 
No.  I.)  which  you  now  hold  of  the  said  A.  Bn 
situate,  (&c.) 

Dated,  (&c.)  Your's,  &c.  E.  F. 

Agent  for  the  said  A.  B. 
To  Mr.  C.  D.  (&c.) 


APPENDIX. 

No.  3. 

SlR> 
'  hereby  give  you  notice,  &c.  (as  in  No.  1.  to 

*ne  date)  provided  your  tenancy  originally  com- 
menced  at  that  time  of  the  year  ;  or,  otherwise, 
that  you  quit  and  deliver  up  the  possession  of  the 
said  messuage,  (&c.)  at  the  end  of  the  year  of 
your  tenancy,  which  shall  expire  next  after  the 
end  of  half  a  year  from  the  time  of  your  being 
served  with  this  notice. 

Dated,  (&c.)  Your's,  &c. 

To  Mr.  C.  D.  (&c.)  A.  B. 

No.  4. 


The  like,  by  SlR, 

a  tenant  from         _    ,  -  - 

year  to  year,      1  hereby  give  you  notice  of  my  intention  to 

of  his  inten-          .  f  J 

tiontoqmu   quit,  and  that  I  shall  on  the  day  of 

next,  quit  and  deliver  up  the  pos- 
session of  the  messuage,  (&c.)  which  I  now  hold 
of  you,  situate,  (&c.) 

Dated,  (&c.)  Your's,  &c. 

To  Mr.  A.  B.  C.  D. 

No.  5. 

Letter  of  at-      Know  all  men  by  these  presents,  that  I,  A.  B., 

torney,  to  i  • 

enter  and     of  have  made,  ordained,  constituted, 

seal  a  lease 

miKs  pre~  an<*  aPPomted,  and  by  these  presents  do  make, 
ordain,  constitute,  and  appoint,  C.  D.,  of 
my  true  and  lawful  attorney,  for  me,  and  in  my 
name,  to  enter  into  and  take  possession  of  a  cer- 
tain messuage,  (&c.)  late  in  the  tenure  and  occu- 
pation of  situate,  (&c.)  but  now 

1  1  11  ten  untcd  ;  and  after  the  said  C.  D.  hath  taken 


APPENDIX.  343 

possession  thereof;  for  me,  and  in  my  name,  and 
as  my  act  and  deed,  to  sign,  seal,  and  execute,  a 
lease  of  the  said  premises  with  the  appurtenances, 
unto  E.  F.  of  to  hold  the  same  to 

him,  the  said  E.  F.,  his  executors,  administrators, 
and  assigns,  from  the  of 

last  past,  before  the  date  hereof,  for  the  term  of 
years,  at  the  yearly  rent  of  a  pepper- 
corn, if  lawfully  demanded  :  subject  to  a  proviso, 
for  making  void  the  same,  on  tendering  the  sum 
of  sixpence  to  the  said  E.  F.,  his  executors  or  ad- 
ministrators.    In  witness,  (&c.) 
Sealed  and  delivered,  (&c.) 

No.  6. 

I.  K.  of  gentleman,  maketh  oath  Affidavit  ot 

and  saith,  that  he  was  present,  and  did  see  A.  B.  the^m? 
of  named  in  the  letter  of  attorney 

hereunto  annexed,  duly  sign,  seal  and  deliver,  the 
said  letter  of  attorney. 

Sworn,  (&c.)  I.  K. 

No.  7. 

This  indenture,  made  the  day  of  '•• 

(&c.)  between  A.  B.  of 

of  the  one  part,  and  E.  F.  of  of  the 

other  part,  witnesseth,  that  the  said  A.  B.  for  and 
in  consideration  of  the  sum  of  five  shillings  of 
lawful  money- of  Great  Britain,  to  him  in  hand 
paid  by  the  said  E.  F.  at,  or  before  the  sealing 
and  delivery  of  these  presents,  the  receipt  where- 
of the  said  A.  B.  doth  hereby  acknowledge,  hath 
demised,  granted,  and  to  farm  let,  unto  the  said 
E,  F.,  his  executors  and  administrators,  all  that 


344  APPENDIX. 

messuage,  (&c)  situate,  (&c.)  late  in  the  tenure 
and  occupation  of  but  now 

untenantcd ;  to  have  and  to  hold  the  same  unto 
the  said  E.  F.,  his  executors  and  administrators, 
from  the  day  of  last 

past,  before  the  date  hereof,  for,  and  during,  and 
unto  the  full  end  and  term  of  years 

from  thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended  :  yielding  and  paying  therefor 
yearly  and  every  year,  during  the  said  term,  unto 
the  said  A.  B.  or  his  assigns,  the  rent  of  one  pep- 
per corn,  if  lawfully  demanded  at  the  feast  of 

Provided  always,  and  these  present* 
are  on  this  condition,  that  if  the  said  A.  B.  or  his 
assigns  shall,  at  any  time  or  times  hereafter,  ten- 
der, or  cause  to  be  tendered  unto  the  said  E.  F.  his 
executors  or  administrators,  the  sum  of  sixpence, 
that  then  and  in  such  case,  and  from  thenceforth, 
this  present  indenture,  and  every  thing  herein  con- 
tained, shall  cease,  determine,  and  be  absolutely 
void,  any  thing  herein  contained  to  the  contrary 
thereof  in  any  wise  notwithstanding.  In  witness 
whereof,  the  parties  here  have  interchangeably  set 
their  hand  and  seals,  the  day  and  year  first  above 
written. 

Sealed  and  delivered,  as  the  act  and"" 
deed  of  the  above  named  A.  B.  by  C. 
D.  of  by  virtue  of  a  letter  of 

attorney  to  him  for  that  purpose  made,  /•    *      * 
by  the  said  A.  B.  bearing  date,  (&c.) 
being  first  duly  stamped  in  the  pre- 
sence of  I.  K.     . 

No.  8. 
Notice  to  »p.      Take  notice,  that  unless  you  appear  in  his  Ma- 

p.car,  fee. 

jesty's   Court  of  King's  Bench  at  Westminster, 


APPENDIX.  3-15 

within  the  first  four  days  (or,  if  in  the  country, 
within  the  first  eight  days)  of  next 
term,  at  the  suit  of  the  above  named  plaintiff,  E. 
F.,  and  plead  to  this  declaration  in  ejectment, 
judgment  will  be  thereon  entered  against  you  by 
default.  Yours,  &c. 

To  Mr.  G.  H.  J.  K.  plaintiff's  attorney. 

No.  9. 

In  the  King's  Bench.  %S£h," 

P  .  <  E.  F.  on  the  demise  of  A.  B.  plaintiff,  tt"" to 

etween    JandG.  H.     -     -  -    defendant. 

I.  K.  of  gentleman,  maketh  oath, 

and  saith,  that  on  the  day  of 

last,  he,  this  deponent,  did  see  C.  D. 
in  the  letter  of  attorney  hereto  annexed  named, 
for,  and  in  the  name  of  A.  B.,  the  lessor  of  the 
plaintiff,  enter  upon,  and  take  possession  of  the 
messuage  in  the  lease  hereto  also  annexed  men- 
tioned, by  entering  on  the  threshold  of  the  outer 
door  thereof;  and  putting  his  finger  into  the  key- 
hole of  the  said  door,  the  said  messuage  being 
then  locked  up  and  uninhabited,  so  that  no  other 
entry  thereon  could  be  made,  nor  any  possession 
thereof  taken,  without  force  ;  and  this  deponent 
further  saith,  that  he  did,  on  the  same  day,  see 
the  above  named  C.  D.  after  such  entry  made, 
and  whilst  he  stood  on  the  threshold  of  the  said 
door,  duly  sign  and  seal  the  lease  hereunto  an- 
nexed, in  the  name  of  the  said  A.  B.  and  as  his 
act  and  deed  deliver  the  same  unto  the  said  E.  F. 
the  plaintiff  above  named  ;  and  that  after  the  said 
lease  was  so  executed,  this  deponent  did  see  the 
said  E.  F.  take  possession  of  the  said  messuage, 
by  virtue  of  the  said  lease,  by  entering  upon  the 
44 


APPENDIX. 

threshold  of  the  said  outer  door,  and  putting  his 
finger  into  the  key-hole  of  the  said  door,  the  said 
messuage  being  then  locked  up  and  uninhabited, 
so  that  no  other  entry  could  be  made  thereon, 
save  as  aforesaid ;  and  that  immediately  after- 
wards, the  said  G.  H.  the  defendant,  came  and  re- 
moved the  said  E.  F.  from  the  said  door,  and  put 
his  foot  on  the  threshold  thereof;  whereupon  this 
deponent  did,  on  the  day  and  year  aforesaid,  de- 
liver to  the  said  defendant,  G.  H.,  who  still  con- 
tinued upon  the  said  threshold,  a  true  copy  of  the 
declaration  of  ejectment,  and  notice  thereunder 
written,  hereto  annexed.  Sworn,  (&c.) 

No.  10. 

George  the  Third,  (&c.)  to  the  sheriff' of 

greeting  :  If  John  Doe  shall  give  you 
security  of  prosecuting  his  claim,  then  put  by  gages 
and  safe  pledges,  Richard  Roe,  late  of 

yeoman,  that  he  be  before  us  on 

wheresoever  we  shall  then  be  in 
England,  (or  in  C.  P.  "  that  he  be  before  our  jus- 
tices at  Westminster,  on 

")  to  show  wherefore,  with  force  and 
arms,  he  entered  into  messuages 

(&c.)-with  the  appurtenances,  in 
which  A.  B.  hath  demised  to  the  said  John  Doe, 
for  a  term  which  is  not  yet  expired,  and  ejected 
him  from  his  said  farm  ;  and  other  wrongs  to  the 
said  John  Doe  there  did,  to  the  great  damage  of 
the  said  John  Doc,  and  against  our  peace  :  And 
have  you  there  the  names  of  the  pledges,  and  this 
writ.  Witness  ourself  at  Westminster,  the 

day  of  in  the 

year  of  our  reign. 


APPENDIX.  347 

No,  11. 

}    TOHV  Dritf  SheriflTg  re- 

Pledges  to  prosecute    '  tur»  ">«e'°- 

)  RICHARD  FEN, 

The   within  named  Richard  )  JOHN  SMITH, 
Roe  is  attached  by  pledges.  )  WILLIAM  STILES. 

No.  12. 

In  the  King's  Bench,  (or  Common  Pleas,)          E^A™™* 

term,  in  the  year  (if££*3? 

the  reign  of  King  George  the  Third, 

(to  wit)  Richard  Roc,  late  of 

yeoman,  was  attached  to  answer  John  Doe 
of  a  plea,  wherefore  the  said  Richard  Roe,  with 
force  and  arms,  £c.  entered  into 
messuages,  barns,  stablca, 

outhouses,  yards, 

gardens,  orchards, 

acres  of  arable  land,  acres  of 

meadow  land,  and  acres  of  pasture 

land,  with  the  appurtenances,  situate,  &c.  which 
A.  B.  had  demised  to  the  said  John  Doe,  for  a 
term  which  is  not  yet  expired,  and  ejected  him 
from  his  said  farm  ;  and  other  wrongs  to  the  said 
John  Doe  there  did,  to  the  great  damage  of  the 
said  John  Doe,  and  against  the  peace  of  our  lord 
the  now  king,  (&c.)  And  thereupon  the  said 
John  Doe,  by  his  attorney,  com- 

plains ;  that  whereas  the  said  A.  B.  on,  &c.  at,  &c. 
had  demised  the  said  tenements  with  the  appur- 
tenances, to  the  said  John  Doe,  to  have  and  to 
hold  the  same  to  the  said  John  Doe  and  his  as- 
signs, from  the  day  of 
then  last  past,  for  and  during,  and  unto  the  full 
end  and  term  of  years  from  thence 


348  APPENDIX. 

next  ensuing,  and  fully  to  be  complete  and  ended : 
By  virtue  of  which  said  demise,  the  said  John 
Doe  entered  into  the  said  tenements  with  the  ap- 
purtenances, and  became,  and  was  thereof  pos- 
sessed, for  the  said  term  so  to  him  thereof  granted : 
And  the  said  John  Doe  being  so  thereof  possessed, 
the  said  Richard  Roe  afterwards,  to  wit,  on,  &c. 
with  force  and  arms,  &c.  entered  into  the  said 
tenements  with  the  appurtenances,  which  the  said 
A.  B.  had  demised  to  the  said  John  Doc,  in  man- 
ner, and  for  the  term  aforesaid,  which  is  not  yet 
expired,  and  ejected  the  said  John  Doe  from  his 
said  farm  ;  and  other  wrongs  to  the  said  John  Doe 
then  and  there  did,  to  the  great  damage  of  the 
said  John  Doe,  and  against  the  peace  of  our  said 
lord  the  now  king ;  wherefore  the  said  John  Doe 
saith,  that  he  is  injured,  and  hath  sustained  da- 
mage to  the  value  of  £  and  therefore 
he  brings  his  suit,  &c. 

No.  13. 

Koticetoap-  Mr.  C.  D. 

pew-  .  •  f 

I  am  informed  that  you  are  in  pessession  of,  or 
claim  title  to,  the  premises  in  this  declaration  of 
ejectment  mentioned,  or  some  part  thereof:  and  I, 
being  sued  in  this  action  as  a  casual  ejector  only, 
and  having  no  claim  or  title  to  the  same,  do  advise 
you  to  appear  in  next  term,  (or, 

in  London  or  Middlesex,  "  on  the  first  day  of 
next  term,")  in  his  Majesty's  Court 

of  King's  Bench,  wheresoever  his  said  Majesty 
shall  then  be  in  England,  (or,  in  the  Common 
Pleas,  "  in  his  Majesty's  Court  of  Common  Bench 
at  Westminster,")  by  some  attorney  of  that  court ; 
and  then  and  there,  by  rule  of  the  same  court,  to 
cause  yourself  fo  be  made  defendant  in  my  stead ; 


APPENDIX.  349 

otherwise  I  shall  suffer  judgment  therein  to  be  en- 
tered against  me  by  default,  and  you  will  be  turn- 
ed out  of  possession, 

Your's,  &c. 

Richard  Roe. 


No.  14. 


Tin-  like  ou 


In  the  King's  Bench,  (or  Common  Pleas.)  a  double  <u- 

mis*1,  with 

term,  (&c.)  °u«  owler- 
(to  wit,)  Richard  Roe,  late  of 
yeoman,  was  attached  to  answer  John  Doe. 
of  a  plea  wherefore  the  said  Richard  Roe,  with 
force  and  arms,  &c.  entered  into 
messuages,  (&c.)  with  the  appurtenances,  situate 
&c.  which  A.   B.  had  demised  to  the  said  John 
Doe,  for  a  term  which  is  not  yet  expired  ;  And, 
also,  wherefore  the  said  Richard  Roe,  with  force 
and  arms,  &c.  entered  into  other 

messuages,  (&c.)  with  the  appurtenances,  situate 
&c.  which  E.  F.  had  demised  to  the  said  John 
Doe  for  a  term  which  is  not  yet  expired,  and 
ejected  him  from  his  said  several  farms,  and  other 
wrongs,  (&c.)  And,  thereupon,  (&c.)  that  where- 
as the  said  A.  B.  on,  &c.  at,  &c.  had  demised  the 
said  tenements  first  above  mentioned,  with  the  ap- 
purtenances, to  the  said  John  Doe  ;  to  have  and 
to  hold  the  same  to  the  said  John  Doc,  and  his 
assigns,  from  the  day  of 

then  last  past,  for  and  during,  and  unto  the  full 
end  and  term  of  years  from  thence 

next  ensuing,  and  fully  to  be  complete  and  ended.* 
And,  also,  that  whereas  the  said  E.  F.  on,  &c.  at, 
&c.  had  demised  the  said  tenements  secondly 
above-mentioned  with  the  appurtenajices,  to  the 


APPENDIX. 

said  John  Doe,  to  have  and  to  hold  the  same  to 
the  said  John  Doe  and  his  assigns,  from  the  said 
day  of  then  last 

past,  for  and  during,  and  unto  the  full  end  and 
term  of  years  from  thence  next 

ensuing,  and  fully  to  be  complete  and  ended :  By 
virtue  of  which  said  several  demises,  the  said 
John  Doe  entered  into  the  said  several  tenements 
first  and  secondly  above  mentioned  with  the  ap- 
purtenances, and  became,  and  was  thereof  pos- 
sessed, for  the  said  several  terms,  so  to  him  thereof 
respectively  granted  :  And  the  said  John  Doe 
being  so  thereof  possessed,  the  said  Richard  Roe 
afterwards,  to  wit,  on,  &c.  with  force  and  arms, 
(&c.)  entered  into  the  said  several  tenements  first 
and  secondly  above  mentioned  with  the  appur- 
tenances, which  the  said  A.  B.  and  E.  F.  had  re- 
spectively demised  to  the  said  John  Doe,  in  man- 
ner and  for  the  several  terms  aforesaid,  which  are 
not  yet  expired,  and  ejected  the  said  John  Doe 
from  his  said  several  farms  ;  and  other  wrongs  5 
&c.  (as  in  the  preceding  precedent  with  the  like 
notice  to  appear.) 

No.  15. 

rue  like,          (As  in  last  precedent  to  this  mark.*)     By  virtue 

with  two  ' 

ousters.  of  wnich  said  demise,  the  said  John  Doe  entered 
into  the  said  tenements  first  above  mentioned 
with  the  appurtenances,  and  became,  and  was 
thereof  possessed,  for  the  said  term  so  to  him 
thereof  granted  :  And  the  said  John  Doe  being 
so  thereof  possessed,  the  said  Richard  Roe  after- 
wards, (to  wit,)  on,  &c.  with  force  arid  arms,  &c. 
entered  into  the  said  tenements  first  above  men- 
tioned with  the  appurtenances,  which  the  said 


APPENDIX.  351 

A.  B.  had  demised  to  the  said  John  Doe,  in  man- 
ner, and  for  the  term  aforesaid,  which  is  not  yet 
expired,  and  ejected  him,  the  said  John  Doe,  from 
his  said  farm :  And,  also,  that  whereas  the  said 
E.  F.  on,  &c.  at,  &c.  had  demised  the  said  tene- 
ments secondly  above  mentioned,  with  the  appur- 
tenances, to  the  said  John  Doe ;  to  have  and  to 
hold  the  same  to  the  said  John  Doe  and  his  assigns, 
from  the  said  day  of 

then  last  past,  for  and  during,  and  unto  the  full 
end  and  term  of  years  from  thence 

next  ensuing,  and  fully  to  be  complete  and  ended ; 
By  virtue  of  which  said  last  mentioned  demise, 
the  said  John  Doe  entered  into  the  said  tenements 
secondly  above  mentioned  with  the  appurtenances, 
and  became,  and  was  thereof  posessed  for  the 
said  last  mentioned  term  so  to  him  thereof  granted: 
And  the  said  John  Doe  being  so  thereof  possessed, 
the  said  Richard  Roe  afterwards,  to  wit,  on,  &c. 
with  force  and  arms,  &c.  entered  into  the  said 
tenements  secondly  above  mentioned  with  the 
appurtenances,  which  the  said  E.  F.  had  demised 
to  the  said  John  Doe,  in  manner,  and  for  the  term 
last  aforesaid,  which  is  not  yet  expired,  and  eject- 
ed the  said  John  Doc  from  his  said  last  mentioned 
farm,  and  other  wrongs,  &c.  (as  in  No.  14,  with 
the  like  notice  to  appear.) 

No.  16. 
In  King's  Bench,  (Common  Pleas,  or  Exche-  A«i.ia%it  ui 

x  Mrviceofde 

Oiler  Pleas.)  duration  in 

ejectment. 

C  John  Doe  on  the  demise  of  A.  B.  plaintiff, 

(  and  Richard  Roe, defendant, 

I.  K ..  of  gentleman,  makcth 

oath,  that  he,  this  deponent,  did,  on,  &c.  *  person- 


•T">  -  APPENDIX. 

ally  serve  C.  D.,  tenant  in  possession  of  the  pre- 
mises in  the  declaration  of  ejectment  hereunto 
annexed  mentioned,  or  (if  he  be  not  tenant  of  the 
whole)  some  part  thereof,  with  a  true  copy  of  the 
said  declaration,  and  of  the  notice  thereunder 
written,  hereunto  annexed,  and  this  deponent,  at 
the  same  time,  read  over  the  said  notice  to  the 
paid  C.  D.,  and  explained  to  him  the  intent  and 
meaning  of  such  service,  t  (or  generally  thus  :  and 
this  deponent,  at  the  same  time,  acquainted  the 
said  C.  D.  of  the  intent  and  meaning  of  the  said 
declaration  and  notice.) 

Sworn,  &c. 

I.  K. 
i 

No.  17. 

wh"rekthcre  (^8  m  'as*  precedent  to  this  mark  *)  personally 
u^amT™1  serve  C.  D.,  (&c.)  tenants  in  possession,  (&c.)  (as 
in  the  last)  with  the  said  declaration,  and  the  no- 
tice thereunder  written,  by  delivering  a  true  copy 
of  the  said  declaration  and  notice  to  each  of  them 
the  said  C.  D.,  &c.  (and,  if  the  notice  was  not  di- 
rected to  all  the  tenants,  say  "  except  that  the  said 
notice  was  directed  to  each  of  them  the  said  C.  D., 
&c.  separately  ;")  and  this  deponent,  at  the  same 
time,  read  over  the  said  notice  to  each  of  them  the 
said  C.  D.,  (&c.)  and  explained  to  them  respec- 
tively the  intent  and  meaning  of  such  service  ;  (or 
generally,  that  "  this  deponent,  at  the  same  time, 
acquainted  each  of  them  the  said  C.  D.,  &c.  of 
the  intent  and  meaning  of  the  said  declaration  and 
notice.")  Sworn,  &c. 

I.K. 


APPENDIX.  353 

No.  18. 
(As  in  No.  16,  to  *)  personally  serve  C.  D.,  te-  Theiike. 

'      .  .  -  f    .,  ~    .  .,        where  (be 

nant  in  possession  of  part  of  the  premises  in  the  deruranoa 

.  wiu  served 

declaration  of  e  ectment  hereunto  annexed  men-  °» one ten- 

.  .  ant,  and  the 

tioned,  with  a  true  copy,  &c.  (as  in  No.  16,  tot :)  wife  of  «BT 

r  J  '  other. 

And  this  deponent  further  saith,  that  he  did,  on 
the  same  day,  also  serve  G.  H.,  tenant  in  posses- 
sion of  other  part  (or  residue)  of  the  premises  in 
the  said  declaration  mentioned,  with  another  true 
copy  of  the  said  declaration  and  notice  thereunder 
written,  by  delivering  the  same  to,  and  leaving  it 
with  M.  II.,  the  wife  of  the  said  G.  H.,  at  the 
dwelling  house  of  the  said  G.  H.,  being  parcel  of 
the  premises  in  the  said  declaration  mentioned, 
and  this  deponent,  at  the  same  time,  read  over  the 
notice  thereunder  written  to  the  said  M.  H.,  and 
explained  to  her  the  intent  and  meaning  of  such 
service.  (Sworn,  &c.) 

I.  K. 

No    19. 
In  the  King's  Bench,  (<&rc.)  Theiike,ou 

'   v  '  stat  4.  Geo. 

C  John  Doe  on  the  demise  of  A.  B.,  plaintiff,  "h^eThf" 

Between     <          JD-UJT>  jrji     premises  ar* 

(  and  Richard  Roe, defendant,  umenante* 

A.  B.,  of  lessor  of  the  plaintiff 

in  this  case,  and  1.  K.,  of  gentle- 

man, severally  make  oath  and  say;  and  first,  this 
deponent,  I.  K.,  for  himself  saith,  that  he  did,  on, 
&c.  affix  a  copy  of  the  declaration  in  ejectment 
hereunto  annexed,  and  the  notice  thereunder  writ- 
ten, upon  the  door  of  the  messuage  in  the  said  de- 
claration mentioned,  (or,  in  case  the  ejectment  is 
not  for  the  recovery  of  a  messuage,  "  upon 

being  a  notorious  place  of  lands,  tene- 
45 


354  APPENDIX. 

ments,  or  hereditaments,  comprised  in  the  said  de- 
claration in  ejectment,")  there  being  no  tenant 
then  in  actual  possession  thereof.  And  this  de- 
ponent, A.  B.,  for  himself  saith,  that  before  such 
copy  of  the  said  declaration  in  ejectment  was  so 
fixed,  as  aforesaid,  there  was  due  to  him,  this  de- 
ponent, as  landlord  of  such  messuage,  (or,  "  lands, 
tenements,  or  hereditaments,")  with  the  appurte- 
nances, from  C.  D.,  the  tenant  thereof,  the  sum 
of  £  for  half  a  year's  rent,  upon 

and  by  virtue  of  a  certain  indenture  of  lease,  bear- 
ing date,  frc.  and  made  between,  &c.  and  that  no 
sufficient  distress  was  then  to  be  found  upon  the 
said  messuage,  (or,  "  lands,  tenements,  or  heredi- 
taments,") with  the  appurtenances,  countervailing 
the  arrears  of  rent  then  due  to  this  deponent : 
And  this  deponent  further  suith,  that  at  the  time 
of  affixing  the  copy  of  the  said  declaration  in  eject- 
ment, as  aforesaid,  he  had  power  to  re-enter  the 
saW  messuage,  (or,  "  lands,  tenements,  and  here- 
ditaments,") with  the  appurtenance's,  by  virtue  of 
the  said  lense,  for  the  nonpayment  of  the  rent  so 
in  arrear,  as  aforesaid. 

Sworn,  (&c.)  A.  B. 

I.  K. 

No.  20. 
Rule  for  next  after  in  the 

judgment  for  , 

the  whole  VCar  OJ.  &C. 

pre  iiise*  in 

Doe  on  the  demise  of  A.  B.  )    Unless  the  tenant 
T.  Roe,   ---------^  in  possession  of  (or, 

if  the  premises  are  un  tenanted,  "  unless  some 
person  claiming  title  to,")  the  premises  in  ques- 
tion shall  appear  and  plead  to  issue,  on 

next  after  let  judg- 


APPENDIX.  355 

ment  be  entered  for  the  plaintiff,  against  the  now 
defendant  Roe  by  default. 
Upon  the  motion  of  Mr. 

By  the  Court. 

No.  21. 

Doe  on  the  demise  of  A.  B.  )    Unless  C.  D.,  te-  J^nk*,  fol 

v.  Roe,   --- )  nant  in  possession 

of  part  of  the  premises  in  question,  shall  appear 
and  plead  to  issue,  on  next  after 

let  judgment  be  entered  for  the  plaintiif,  against 
the  now  defendant  Roe,  by  default :  But  execu- 
tion shall  issue  for  such  part  of  the  premises  only 
as  is  in  his  possession. 
Upon  the  motion  of  Mr. 

By  the  Court. 

No.  22. 

Doe  on  the  demise  of  A.  B.  >  Unless  C.  D.  C&c.) 

\  ' 

•o.  Roe, )  tenants   in  posses- 

sion  of  part  of  the  premises  in  question,  and  un-  J£r\ledu'ul{£1 
less  or  some  other  person  named* 

claiming  title  to  such  part  of  the  said  premises  as 
are  untenanted,  shall  appear  and  plead  to  issue, 
on  next  after  let 

judgment  be  entered  for  the  plaintiif,  against  the 
now  defendant  Roe,  by  default :  But  execution 
shall  issue  for  such  part  of  the  premises  only  as  is 
in  the  possession  of  the  said  tenants,  and  such 
•ther  parts  as  are  untenanted. 

By  the  Court. 


356  APPENDIX. 

No.  23. 

Jiidpmf nt  for          AB  ,-f>f  /%f  tf»rm     in  thf* 

tht'r'iintiff  *»o   J^**-  "1  ICJ  III,   111    tilt. 

bvmliiiri:  hy  VCBT    &C. 

JmL*i£h*  Witness,  Edward  Lord  Ellcnborough. 

(to  wit,)  John  Doe,  on  the  demise  of 
A.  B.  puts  in  his  place  1.  K.  his  attorney,  against 
Richard  Roe,  in  a  plea  of  trespass  and  ejectment 
of  farm. 

(to  wit.)  The  said  Richard  Roe 

in  person,  at  the  suit  of  the  said  John  Doe,  in  the 
plea  aforesaid. 

(to  wit.)  Richard  Roe  was  at- 
tached to  answer  John  Doe,  &C.  (copy  the  declara- 
tion to  the  end,  omitting  the  notice,  and  proceed  on  a 
new  line  as  follows  ;) 

And  the  said  R.  R.  in  his  proper  person,  comes 
and  defends  the  force  and  injury,  when,  &c.  and 
says  nothing  in  bar  or  preclusion  of  the  said  action 
of  the  said  J.  D.  whereby  the  said  J.  D.  remains 
therein  undefended  against  the  said  R.  R. :  There- 
fore, it  is  considered,  that  the  said  J.  D.  recover 
against  the  said  R.  R.  his  said  term  yet  to  come,  of 
and  in  the  tenements  aforesaid,  with  the  appurte- 
nances; and  also  his  damages  sustained  by  reason 
of  the  trespass  and  ejectment  aforesaid  : — And 
hereupon  the  said  J.  D.  freely  here  in  court  re- 
mits to  the  said  R.  R.  all  such  damages,  costs, 
and  charges,  as  might,  or  ought  to  be  adjudged  to 
him,  the  said  J.  D.,  by  reason  of  the  trespass  and 
ejectment  as  aforesaid :  therefore,  let  the  said  R.  R. 
be  acquitted  of  those  damages,  costs,  and  charges, 
&c.  : — And  hereupon  the  said  J/D.  prays  the 
writ  of  the  said  lord  the  king,  to  be  directed  to  the 
sheriff  of  the  county  aforesaid,  to  cause  him  to 
have  p08S(j?sion  of  his  said  term  yet  to  come,  of 


APPENDIX. 


357 


and  in  the  tenements  aforesaid,  with  the  appurte- 
nances ;  and  it  is  granted  to  him,  returnable  before 

the  said  lord  the  king,  on wheresoever, 

fee. 

No.  24. 


-in  the- 


-on,  (or  next  after,) — 
year,  &c. 


(to  wit.)  Doe  on  the 


mise  of  A.  B.  against  Roe,  for 

messuages,  (&c.)  in  the 
parish  of  »  in  the 

said  county  :  (or,  if  there  be  seve- 
ral demises,  say}  u  Doe,  on  the 
demise  of  A.  B.  for 
messuages,  (&c.)  in  the  parish  of 
in  the  said 

county,  and,  also,  on  the  demise 
of  E.  F.  for  other 

messuages,  (&c.)  in  the  parish  of 


It  is  ordered  '•> 
by  the  consent 
of  the  attor- 
nies for  both 
parties,  that 
C.D.  be  made 
defendant  in 
the  stead  of 
•the  now  de- 
fendant Roe, 
and  do  forth- 
with appear  at 
the  suit  of  the 
plaintiff;  and 
(if  the  eject- 
ment be  by  bill) 
file  common 


Consent  of 
attornics,  for 
I'M  tenant  to 
be  admitted 
to  defend,  IUY 


in  the  said  county, 
against  Roe  ;"  and  if  the  tenant 
appear  for  part  only,  add,  "  be- 
ing part  of  the  premises  mention- 
ed in  the  declaration." 
bail,  and  receive  a  declaration  in  an  action  of 
trespass  and  ejectment,  for  the  premises  in  ques- 
tion, and  forthwith  plead  thereto  not  guilty,  and 
upon  the  trial  of  the  issue,*  confess  lease,  entry, 
and  ouster,  and  insist  upon  the  title  only  ;  other- 
wise let  judgment  be  entered  for  the  plaint  ill' 
against  the  now  defendant  Roe,  by  default :  And 
if,  upon  the  trial  of  the  said  issue,  the  said  C.  D. 
shall  not  confess  lease,  entry,  and  ouster,  where- 
by the  plaintiff  uhall  not  be  able  further  to  prose- 


368  APPENDIX. 

eute  his  writ  (or  "  bill,")  against  the  said  C.  D. 
then  no  costs  shall  be  allowed  for  not  further  pro- 
secuting the  same,  but  the  said  C.  D.  shall  pay 
costs  to  the  plaintiff,  in  that  case  to  be  taxed : 
And  it  is  further  ordered,  that  if,  upon  the  trial  of 
the  said  issue,  a  verdict  shall  be  given  for  the  said 
C.  D.  or  it  shall  happen  that  the  plaintiff  shall  not 
further  prosecute  his  said  writ  (or  "  bill,")  foranj 
other  cause,  than  for  nott  confessing  lease,  entry, 
and  ouster,  then  the  lessor  of  the  plaintiff  shall 
pay  to  the  said  C.  D.  costs  in  that  case  to  be  ad- 
judged. 

I.  K.  attorney  for  the  plaintiff, 
L.  M.  attorney  for  the  defendant. 

No.  25. 


Consent  Rule      In  the  Common  Pleas. 

itt  C.  P. 


term  in  the  year  &c. 

the day  of 


(to  wit.)  Doe,  on  the  de-~\  It  is  ordered 

mise  of  A.   B.  against  Roe,  for  f  by  consent  of 

messuages,  &c.  (as  in  the  f  I.  K.  attorney 

last  precedent.)  )  for  the  plain- 

tiff, and  L.  M.  attorney  for  C.  D.,  who  claims 
title  to  the  tenements  in  question,  that  the  said 
C.  D.  shall  be  admitted  defendant,  and  that  the 
said  C.  D.  shall  immediately  appear  by  his  said 
attorney,  who  shall  receive  a  declaration,  and 
plead  thereto  the  general  issue,  this  term  ;  and 
that  at  the  trial  to  be  had  thereon,  the  said  C.  D. 
shall  appear  in  his  proper  person,  or  by  his  coun- 
sel or  attorney,  and  confess  lease,  entry,  and  ous- 


APPENDIX.  369 

ter  for  so  much  of  the  tenements  specified  in  the 
plaintiff's  declaration,  as  are  in  the  possession  of 
the  said  defendant  or  his  tenant,  or  any  person 
claiming  by,  or  under  his  title  ;  or  that,  in  default 
thereof,  judgment  shall  be  thereupon  entered 
against  the  defendant,  Richard  Roe,  the  casual 
ejector :  but  proceedings  shall  be  stayed  against 
him,  until  default  shall  be  made  in  any  of  the  pre- 
mises. And,  by  the  like  consent,  it  is  further  or- 
dered, that  if,  by  reason  of  any  such  default,  the 
plaintiff  shall  happen  to  be  nonsuited  upon  the 
trial,  the  said  C.  D.  shall  take  no  advantage  there- 
of, but  shall  thereupon  pay  to  the  plaintiff  costs,  to 
be  taxed  by  the  prothonotaries.  And  it  is  further 
ordered,  that  the  lessor  of  the  plaintiff  shall  be 
liable  to  the  payment  of  costs  to  the  said  C.  D.  by 
the  Court  here,  to  be  in  any  manner  allowed  or 
adjudged. 

By  the  Court. 

No.  26. 

In  the  King's  Bench.  Affidavits 

C.  D.  of maketh  oath,  and  saith,  ™i(.  to  au- 

tborlzf  the  te- 

that  no  actual  ouster  of  the  lessor  of  the  plaintiff"  "t»«con- 

li  *••  !ca-»'«nd 

has  been  committed  by  this  deponent,  and  that  ™'!j>  ou|y '" 
(as  he,  this  deponent,  verily  believes,)  this  eject- 
ment may  involve  a  question  between  tenants  in 
common,  or  joint-tenants. 

Sworn,  (&c.)  C.  D. 

No.  27. 
Doe,  on  the  demise  of  A.  B.  )  Upon  readme  the  Rat?  in  K.B 

_  to  authorize 

r.  Koe     -   -  -------V  rule  made  yester-  «hc  |enant  |o 

.  confeM  Ira 

day,  and  upon  hearing  Mr. &c.  for 


360  APPENDIX. 

the  lessor  of  the  plaintiff,  and  Mr. &c. 

for  the  tenant ;  it  is  ordered,  that  the  defendant 
enter  into  a  rule  for  confessing  lease  and  entry, 
and  also  for  confessing  ouster  of  the  nominal  plain- 
tiff, incase  an  actual  ouster  of  the  plaintiff's  lessor 
by  the  defendant  shall  be  proved  at  the  trial,  but 
not  otherwise. 

By  the  Court. 

No.  28. 
consent Rui«    Doe  ")      It  is  ordered,  &c.  (as  in  No.  24.  to  *) 

'hercon.  f 

v.  >  confess  lease  and  entry,  and  also  ouster 
Roe.  )  of  the  nominal  plaintiff,  in  case  an  actual 
ouster  of  the  plaintiff's  lessor  by  the  defendant 
shall  be  proved  at  the  trial,  but  not  otherwise, 
and  insist  upon  the  title,  and  such  actual  ouster 
only;  otherwise  let  judgment  be  entered  for  the 
plaintiff  against  the  now  defendant  Roe,  by  default. 
And  if,  upon  the  trial  of  the  said  issue,  the  said 

C.  D.  shall  not  confess  lease 

and  entry,  and  also  ouster,  upon  the  condition 
aforesaid,  whereby,  &c.  (a*  m  No.  24  to  t  )  con- 
fessing lease  and  entry,  and  also  ouster  subject  to 
the  conditions  aforesaid,  then  the  lessor  of  the 
plaintiff  shall  pay  to  the  said  C.  D.  costs  in  that 
case  to  be  adjudged. 

By  the  court. 

No.  29. 
RuicinK.B.  Doe,  on  the  demise  of  A.  B.  )  It  is  ordered,  that 

lor  admitting  I 

«he'»°£J»"»       T>.  Roe \  E.   F.  landlord  of 

(o  defend,  &c.  * 

the  tenant  in  possession  of  the  premises  in  ques- 
tion in  this  cause,  shall  be  joined  and  made  de- 
fendant with  the  said  tenant,  if  he  shall  appear : 
And  the  said  £.  F.  desiring,  if  the  said  tenant 


APPENDIX.  361 

shall  not  appear,  that  he  may  appear  by  himself, 
and  consenting  that  in  such  case  he  will  enter  into 
the  common  rule  to  confess  lease,  entry,  and 
ouster,  in  such  manner  as  the  said  tenant  ought, 
in  case  he  had  appeared  ;  (or  if  the  rule  be  special, 
to  confess  lease  and  entry  only,  say,  "  to  confess 
lease  and  entry  only,  without  ouster,  unless  an 
actual  ouster  of  the  lessor  of  the  plaintiff,  by  the 
said  C.  D.  or  those  claiming  under  him,  be  proved 
at  the  trial,")  leave  is  given  to  the  said  E.  F.  pur- 
suant to  the  late  act  of  Parliament,  if  the  said 
tenant  shall  not  appear,  to  appear  by  himself,  and 
upon  his  entering  into  such  Common  Rule,  to 
become  defendant  in  the  stead  of  the  casual 
ejector,  and  to  defend  his  title  to  the  said  premises 
without  the  said  tenant:  the  plaintiff  nevertheless 
is  at  liberty  to  sign  judgment  against  the  casual 
ejector ;  but  execution  thereon  is  stayed,  until  the 
court  shall  further  order.  Upon  the  motion  of 

Mr. 

By  the  court. 

No.  30. 
C.  D. ^  term,  (&c.)  pica  of  m« 

/  guilty. 

ats.  \  And  the  said  C.  D., 

Doe,  on  the  demise  of  A.  B.  3  by  L.  M.,  his  attor- 
ney, comes  and  defends  the  force  and  injury, 
when,  &c.  and  says  that  he  is  not  guilty  of  the 
supposed  trespass  and  ejectment,  (or  if  several 
ousters  are  laid  in  the  declaration,  "  of  the  sup- 
posed trespasses  and  ejectments,")  above  laid  to 
his  charge,  in  manner  and  form  as  the  said  John 
Doe  hath  above  thereof  complained  against  him  ; 
And  of  this  he,  the  said  C.  D.,  puts  himself  upon 
the  country,  &c. 

46 


362  APPENDIX. 

No.  81. 


And  the  said 


m«sn«.         afg>  f  j^ his  attor- 

Doe,  on  demise  of  A.  B.  ^  ney  comes  arid  defends 
the  force  and  injury,  when,  &c.  and  says,  that  all 
the  tenements  and  premises  in  the  declaration 
aforesaid  specified,  in  which  the  trespass  and 
ejectment  are  above  supposed  to  have  been  done, 

are  held  of as  of  his  manor  of 

in  the  county  of and 

which  said  manor  is,  and  from  time  whereof  the 
memory  of  man  is  not  to.  the  contrary,  was  of  an- 
cient demesne  of  the  crown  of  the  king  of  Eng- 
land, and  now  of  our  lord  the  king  ;  and  that  the 
aforesaid  tenements  and  premises  are,  and  for  all 
the  time  aforesaid,  were  pleaded  and  pleadable  in 
the  court  of  the  same  manor  by  patent  writ  of  our 
lord  the  king,  of  right  close  only,  and  not  else- 
•  where  or  otherwise  ;  and  this  he  is  ready  to  verify 
as  the  Court  shall  think  proper  :  Wherefore,  he 
prays  judgment,  if  the  Court  of  our  said  lord  the 
king,  now  here,  will  take  cognisance  of  the  said 
plea,  &c. 

No.  32. 
Affidavit  to        c   D.  the  tenant  in  possession  of  the  premises 

accompany 

"  in  the  declaration  of  ejectment  in  this  cause  above 
mentioned,  maketh  oath,  and  saith,  that  the  said 
premises  in  the  said  declaration  in  this  cause  above 
mentioned,  with  the  appurtenance,  are  held  of 

as  of  his  manor 

of in  the  county  of 

•     •• and  which  said  manor  is  holden  in  an- 


APPENDIX.  363 

cient  demesne  :  And  this  deponent  further  saith, 
that  there  is  a  Court  of  ancient  demesne  held 

within  the  said  manor  of and 

that  there  are  suitors  in  the  same  Court,  in  which 
•aid  Court,  and  before  which  suitors  the  said  A.  B. 
the  lessor  of  the  plaintiff  above  named  might  have 
proceeded  in  the  said  ejectment ;  and  this  depo- 
nent further  saith,  that  to  the  best  of  this  depo- 
nent's knowledge  and  belief,  the  said  A.  B.,  the 
said  lessor  of  the  plaintiff  is  seised  in  his  demesne 
as  of  fee,  of  and  in  the  said  premises,  with  the  ap- 
purtenances in  the  said  declaration  of  ejectment 
mentioned.  C.  D. 

Sworn,  &c. 

No.  33. 

Afterwards,  that  is  to  say,  on,  &c.  at,  &c.,  be-  ?°?tM ifor 

J  '  defendant  on 

fore,  (&c.)  comes  the  within  named  John  Doe,  ™oSnf 
by  his  attorney  within  mentioned,  and  the  within-  ! 
named  C.  D.  although  solemnly  required,  comes 
not,  but  makes  default ;  therefore,  let  the  jurors 
of  the  jury  whereof  mention  is  within  made,  be 
taken  against  him  by  his  default ;  and  the  jurors 
of  that  jury  being  summoned  also  to  come,  and  to 
speak  the  truth  of  the  matters  within  contained, 
being  chosen,  tried,  and  sworn,  the  said  C.  D.,  al- 
though solemnly  called  to  appear  by  himself  or 
his  counsel  or  attorney,  to  confess  lease,  entry, 
and  ouster,  doth  not  come,  by  himself  or  his  coun- 
sel or  attorney,  nor  doth  he  confess  lease,  entry, 
and  ouster,  but  therein  makes  default ;  where- 
fore the  said  John  Doe  doth  not  further  prose- 
cute his  writ,  (or  bill,)  against  the  said  C.  D. 
Therefore,  (&c.) 


ingle 
rya 
ter. 


364  APPENDIX. 

No.  34. 

foUrdtfj£*uin-  (To  the  end  of  the  issue,  and  then  as  follows :) 
offfihep°re-art  At  which  day,  before  our  lord  the  king  at  West- 
Ibr'thede'i  minster,  comes,  (or  in  the  Common  Pleas  or  Ex- 
tSStnt^*  chequer,  "  At  which  day  comes  here,")  the  parties 
0  e  aforesaid  by  their  attornies  aforesaid ;  and  here- 
upon the  said  C.  D.  as  to parcel  of 

the  tenements  in  the  said  declaration  mentioned, 
relinquishing  his  said  plea  by  him  above  pleaded, 
says,  that  he  cannot  deny  the  action  of  the  said 
John  Doe,  nor  but  that  he,  the  said  C.  D.  is  guilty 
of  the  trespass  and  ejectment  above  laid  to  his 
charge,  in  manner  and  form  as  the  said  John  Doe 
hath  above  thereof  complained  against  him  :  And 
upon  this  the  said  John  Doe  says,  that  he  will  not 
further  prosecute  his  suit  against  the  said  C.  D. 
for  the  trespass  and  ejectment  in  the  residue  of  the 
tenements  aforesaid  ;  and  he  prays  judgment,  and 

his  term  yet  to  come,  of  and  in  the  said 

with  the  appurtenances,  parcel,  &c.  to- 
gether with  his  damages,  costs,  and  charges,  by 
him  in  this  behalf  sustained  :  Therefore,  it  is  con- 
sidered, that  the  said  John  Doe  do  recover  against 
the  said  C.  D.  his  said  term  yet  to  come,  of  and 
in  the  said with  the  appur- 
tenances, parcel,  (&c.)  and  also  £ 

for  his  said  damages,  costs,  and  charges,  by  the 
Court  of  the  said  lord  the  king  now  here  adjudged 
to  the  said  John  Doe,  and  with  his  assent,  and 
also  with  the  assent  of  the  said  C.  D. :  And  let 
the  said  C.  D.  be  acquitted  of  the  said  trespass 
and  ejectment  in  the  residue  of  the  tenements 
aforesaid,  and  go  thereof  without  day,  (&c.)  :  And 
the  said  John  Doe  prays  the  writ  of  our  said  lord 
the  king,  to  be  directed  to  the  sheriff  of 


APPENDIX.  365 

aforesaid,  to  cause  him  to  have  possession 

of  his  said  term  yet  to  come  of,  and  in  the  said 

with  the  appurtenances,  parcel,  (&c.) 

and  it  is  granted  to  him,  returnable  before  our 

said  lord  the  king  on wheresoever,  (&c.) 

(or  in  the  Common  Pleas  or  Exchequer,  "  return- 
able here  on &c.") 

No.  35. 
Doe  on  the  demise  of  A.  B.  )  Upon  reading  a  rule  Rule  for  e»e- 

\  cution  a- 

T.  Roe, )  made  in  this  cause  ^"ejectoT" 

on and  E.  F.,  therein  ulldtorlniad 

named,  having  made  himself  defendant  in  the  I^fem'unl 
stead  of  the  casual  ejector,  pursuant  to  the  said  the  tail? 
rule,  and  the  postea  in  the  said  cause  being  pro- 
duced and  read,  and  a  rule  made  in  the  same 
cause  this  day  ;  it  is  ordered,  that  the  said  E.  F., 
upon  notice  of  this  rule  to  be  given  to  his  attor- 
ney, (&c.)  show  cause,  why  the  plaintiff  should 
not  have  leave  to  sue  out  execution,  upon  the 
judgment  signed  against  the  casual  ejector  pur- 
suant to  the  first  mentioned  rule.  Upon  the  mo- 
tion of  Mr. 

By  the  Court. 

No.  36. 
George  the  Third,  (&c.)     To  the  Sheriff  of  — 


greeting :  Whereas,  John  Doe,  lately  in 

our  court  before  us  at  Westminster,  by  our  writ, 
(or  if  by  bill,  say,  "by  bill  without  our  writ,1') 
and  by  the  judgment  of  the  same  court  recovered 
against  C.  D.,  (or  if  the  judgment,  be  by  default 
"  against  Richard  Roe,")  his  term  then  and  yet  to 
come,  of  and  in  •  dwelling  houses,  &c. 


pMt 


366  APPENDIX. 

(as  in  the  declaration  in  ejectment)  with  the  ap- 
purtenances, situate,  &c.  which  A.  B.,  on,  &c.  had 
demised  to  the  said  J.  D.,  to  hold  the  same  to  the 
said  J.  D.  and  his  assigns,  from,  &c.  for  and  during, 
.>,  and  unto  the  full  end  and  term  of  -  years 
$  from  thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended,  *  by  virtue  of  which  said  demise, 
the  said  J.  D.  entered  into  the  said  tenements 
with  the  appurtenances,  and  was  possessed  there- 
of, until  the  said  C.  D.  afterwards,  (to  wit,)  on, 
&c.  with  force  and  arms,  (&c.)  entered  into  the 
said  tenements  with  the  appurtenances,  which  the 
said  A.  B.  had  demised  to  the  said  J.  D.  in  man- 
ner, and  for  the  term  aforesaid,  which  was  not 
then,  nor  is  yet  expired,  and  ejected  the  said  J. 
D.  from  his  said  farmO^?-;  whereof  the  said  C.  D. 
is  convicted,  as  appears  to  us  of  record  ;  there- 
fore we  command  you,  that  without  delay  you 
cause  the  said  J.  D.  to  have  the  possession  of  his 
said  term  yet  to  come  of  and  in  the  tenements 
aforesaid,  with  the  appurtenances  :  and  in  what 
manner  you  shall  have  executed  this  our  writ, 
make  appear  to  us,  on  wheresoever  we  shall 

then  be  in  England,  (or  by  bill,  "  to  us  at  West- 
minster, on  next  after  ,"t)  and  have 

there  (or  by  bill,  "  have  there  then,")  this  writ. 
Witness,  Edward  Lord  Ellenborough,  (&c.) 

No.  37. 


(^S  m  Preceding  precedent  to*  ;)  and  also  his 
term,  then,  and  yet  to  come,  of  and  in 
other  dwelling  houses,  (&c.)  with  the  appurte- 
nances, which  E.  F.,  on,  &c.  had  demised  to  the 
said  J.  D.,  to  hold  the  same  to  the  said  J.  D.  and 
his  assigns,  from,  &c.  for  and  during,  and  unto. 


APPENDIX.  367 

the  full  end  and  term  of  years  from  thence 

next  ensuing,  and  fully  to  be  complete  and  ended ; 
by  virtue  of  which  said  several  demises,  the  said 
J.  D.  entered  into  the  said  several  tenements 
with  the  appurtenances,  and  was  possessed  there- 
of, until  the  said  C.  D.  afterwards,  to  wit,  on,  &c. 
with  force  and  arms,  &c.  entered  into  the  said 
several  tenements  with  the  appurtenances,  which 
the  said  A.  B.  and  E.  F.  had  respectively  demised 
to  the  said  John  Doe,  in  manner,  and  for  the  se- 
veral terms  aforesaid,  which  were  not  then,  nor 
are  yet  expired,  and  ejected  the  said  J.  D.  from 
his  said  several  farms ;  whereof  the  said  C.  D.  is 
convicted,  (adding  in  K.  B.  "  as  appears  to  us  of 
record  :")  therefore  we  command  you,  that  with- 
out delay,  you  cause  the  said  J.  D.  to  have  the 
possession  of  his  said  several  terms  yet  to  come,  of 
and  in  the  said  several  tenements,  with  the  appur- 
tenances :  and  in  what  manner,  &c.  (a?  in  preced- 
ing precedent  to  the  end.) 

No.  38. 

(As  in  No.  36,  to  t.)  We  also  command  you,  TH^  iik?)a«a 
that  of  the  goods  and  chattels  of  the  said  C.  D.,  costs, by  ori- 

ginal  in  K.  D. 

in  your  bailiwick,  you  cause  to  be  made  £. 

which  the  said  J.  D.,  lately  in  our  said  court  be- 
fore us,  at  Westminster,  aforesaid,  recovered 
against  the  said  C.  D.  for  his  damages,  which  he 
had  sustained,  as  well  on  occasion  of  the  trespass 
and  ejectment  aforesaid,  as  for  his  costs  and 
charges  by  him,  about  his  suit,  in  that  behalf  ex- 
pended ;  whereof  the  said  C.  D.  is  convicted,  as 
appears  to  us  of  record  :  and  have  you  the  moneys 
before  us,  on  the  return  day  aforesaid,  whereso- 
ever, (&c.)  to  be  rendered  to  the  said  John  Doe, 


368  APPENDIX. 

for  his  damages  aforesaid,  and  have  there  this  writ. 
Witness,  Edward  Lord  Ellenborough. 

No.  39. 
Tbeiike,«nd      (As  in  No.  36,  to  t)  we  also  command  you,  that 

.-.i  pi-is  ad  sa-         v  » 

tisfacirndum  yOU  take  the  said  C.  D.,  if  he  shall  be  found  in 

lor  costs,  by    » 

yOur  bailiwick,  and  him  safely  keep,  so  that  you 
may  have  his  body  before  us,  on  the  return  day 
aforesaid,  wheresoever,  (&c.)  to  satisfy  the  said 
J.  D.  £.  which  in  our  said  court  before  us, 

at  Westminster  aforesaid,  were  adjudged  to  the 
said  J.  D.,  for  his  damages,  which,  &c.  (as  in  pre- 
ceding precedent  to  the  end.) 

No.  40. 


ai  in 


£*      (Copy  the  last  precedent  to  the  end,  omitting 
inerror,on    the  words  "and  have  there  this  writ,"  and  then 

an  affirmance 

o"  L"ords°use  as  f°U°ws  :)  and  also  £.  which  in  our  Court  of 
Parliament  were  adjudged  to  the  said  J.  D.,  ac- 
cording to  the  form  of  the  statute  in  such  case  made 
and  provided,  for  his  damages,  costs  and  charges, 
which  he  had  sustained  and  expended,  by  reason 
of  the  delay  of  execution  of  the  judgment  afore- 
said, on  pretext  of  prosecuting  our  writ  of  error, 
brought  thereupon  by  the  said  C.  D.  against  the 
said  J.  D.,  in  the  same  Court  of  Parliament,  the 
said  judgment  being  there  in  all  things  affirmed  : 
whereof  the  said  C.  D.  is  also  convicted,  as  by 
the  inspection  of  the  record  and  proceedings 
thereof,  remitted  from  our  said  Court  of  Parlia- 
ment into  our  said  court  before  us,  likewise  ap- 
pear to  us  of  record  ;  and  have  there  this  writ. 
Witness,  (&c.) 


APPENDIX.  369 

No.  41. 

(As  in  No.  36.  to  "  whereof  the  said  C.  D.  is  writer rwu- 

tutioo. 

convicted,"  &c.  and  then  as  follows  :)  and  whereas 
we  afterwards,  to  wit,  in  — • —  term  aforesaid,  by 
our  writ,  commanded  you,  that  without  delay  you 
should  cause  the  said  J.  D.  to  have  possession  of 
his  said  term,  then  to  come,  of  and  in  the  tene- 
ments aforesaid,  with  the  appurtenances  ;  and  that 
you  should  make  known  to  us  on  a  day  now  past, 
in  what  manner  you  should  have  executed  that 
our  writ :  and  because  since  the  issuing  of  our 
said  writ,  it  hath  appeared  to  us,  that  the  said 
judgment,  obtained  by  the  said  J.  D.,  in  manner 
aforesaid,  was  irregularly  obtained,  and  that  our 
said  writ  thereupon  issued  improvidently  and  un- 
justly ;  therefore  we  command  you,  that  if  pos- 
session of  the  tenements  aforesaid,  with  the 
appurtenances,  hath,  by  virtue  of  our  said  writ, 
been  given  or  delivered  to  the  said  J.  D.,  then 
that  without  delay  you  cause  restitution  of  the 
said  tenements  with  the  appurtenances,  to  be  made 
to  the  said  G.  H.  or  his  assigns,  at  whose  instance 
the  judgnu  nt  aforesaid  hath  been  set  aside  by  our 
said  Court,  he,  the  said  G.  H.,  being  landlord  and 
owner  of  the  tenements  aforesaid,  with  the  appur- 
tenances ;  and  that  whatever  has  been  done  by 
virtue  of  our  said  writ,  you  deem  altogether  void, 
and  of  no  effect,  as  you  will  answer  the  contrary 
at  your  peril :  and  in  what  manner,  &c.  (as  in  No. 
34.  to  the  end.) 

No.  42. 

As  in  No.  36.  to  this  mark  (£7-.  and  then  as  fol-  &**/**» 

for  th«  plaii- 

lows  :)  and  also  £. for  the  damages  which  the  «Mr- 

47 


370  APPENDIX. 

said  John  Doe  had  sustained,  as  well  on  occasion 
of  the  trespass  and  ejectment  aforesaid,  as  for  hii 
costs  and  charges  by  him,  about  his  suit  in  that 
behalf  expended  ;  whereof  the  said  C.  D.  is  con- 
victed; as  appears  to  us  of  record  :  And  now,  on 
the  behalf  of  the  said  J.  D.  in  our  said  Court  be- 
fore us,  we  have  been  informed,  that  although 
judgment  be  thereupon  given,  yet  execution  of 
that  judgment  still  remains  to  be  made  to  him ; 
wherefore  the  said  J.  D.  hath  humbly  besought 
us  to  provide  him  a  proper  remedy  in  this  behalf; 
and  we  being  willing  that  what  is  just  in  this  be- 
half should  be  done,  command  you.  that  by  honest 
and  lawful  men  of  your  bailiwick,  you  make  known 
to  the  said  G.  D.  (if  against  the  casual  ejector  u  to 

•the  said  Richard  Roe,  and  also  to and 

the  tenants  in  possession  of  the  premises 

aforesaid,")  that  he,  (or  they,)  be  before  us,  on  — 
wheresoever,  (&c.)  to  show  if  he  has  or  knows  of 
any  thing  to  say  for  himself,  or,  (if  they  have  or 
know,  or  if  either  of  them  hath  or  knoweth,  of 
any  thing  to  say  for  themselves  or  himself,)  why 
the  said  J.  D.  ought  not  to  have  the  possession  of 
his  said  term  yet  to  come,  of  and  in  the  tenements 
aforesaid,  and  also  execution  of  the  damages,  costs 
and  charges,  aforesaid,  according  to  the  force, 
form,  and  effect  of  the  said  recovery,  if  it  shall 
seem  expedient  for  him  so  to  do,  and  further  to  do 
and  receive  what  our  said  Court  before  us  shall 
consider  of  him,  (or  them,)  in  this  behalf:  And 
have  there  the  names  of  those  by  whom  you  shall 
so  make  known  to  him,  (or  them,)  and  this  writ. 
Witness,  Edward  Lord  Ellenborough,  (&c.) 


APPENDIX.  371 

No.  43. 


Doe,  on  the  demise  of  A.  B.  }     Upon  reading  the  ?"rl 

v.  Roe  -  -  -  .....  5  affidavit  of  L.  M. 
(&c.)  it  is  ordered,  that  the  lessor  of  the  plaintiff, 
upon  notice,  (&c.)  show  cause,  why  further  pro- 
cecdings  in  this  action  should  not  be  stayed,  until 
a  sufficient  guardian  be  appointed  for  the  lessor 
of  the  plaintiff,  who  will  undertake  to  pay  to  the 
defendant  such  costs  as  may  happen  to  be  ad- 
judged to  him  ;  and  that  in  the  mean  time  further 
proceedings  be  stayed.  Upon  the  motion  of  Mr. 

By  the  Court. 


No.  44. 
Doe,  on  the  demise  of  A.  B.  >      Upon   reading  Tbe  uke,  IHJ 

O  security  be 

v.  Roe     ......  -  ---  5  the  affidavit  of  L.  «££  for 

M.  and  another,  it  is  ordered,  that  the  lessor  of 
the  plaintiff,  upon  notice,  (&c.)  show  cause,  why 
further  proceedings  in  this  action  should  not  be 
stayed,  until  *  sufficient  security  be  given  to  an- 
swer the  defendant  his  costs,  in  case  the  plaintiff 
be  nonsuited,  or  a  verdict  shall  be  given  for  the 
said  defendant  ;  and  that  in  the  mean  time  further 
proceedings  be  stayed.  Upon,  &c. 

No.  45. 


(As  in  No.  44,  to.*)  the  costs  taxed  in  a  former  J^.'^j" 
action  brought  in  the  Court  of  King's  Bench,  on  |^dTfif£- 
thc  demise  of  the  lessor  of  the  plaintiff,  for  the  ^1Bactit"li" 
same  premises,  are  paid  ;  and  in  the  mean  time 
and  until  this  Court  shall  otherwise  order,  that  all 
further  proceedings  be  stayed.     Upon.  &c. 


372  AFPENDIX. 

No.  46. 


Upon  reading  the  affidavit  of  G.  H.,  it  is  order- 
ea<>  tnat  tne  lessor  of  the  plaintiff,  upon  notice, 
(<Szc.)  shall  show  cause,  (&c.)  why,  upon  the  de- 
fendant's bringing  into  this  Court  the  principal 
money  and  interest  due  to  the  lessor  of  the  plain- 
tiff* upon  his  mortgage,  and  also  such  costs  as  have 
been  expended  in  any  suit  or  suits  at  law  or  equity 
upon  such  mortgage,  his  costs  in  this  cause  to  be 
ascertained,  computed,  and  taxed,  by  one  of  the 
prpthonotaries,  the  money  so  brought  into  this 
Court  should  not  be  deemed  and  taken  to  be  in 
full  satisfaction  and  discharge  of  such  mortgage  ; 
and  upon  payment  thereof  to  the  lessor  of  the 
plaintiff,  why  all  proceedings  in  this  action  should 
not  be  stayed;  and  why  the  mortgaged  premises, 
and  the  lessor  of  the  plaintiff's  estate  and  in- 
terest therein,  should  not  be  assigned  and  convey- 
ed, at  the  cost  and  charges  of  the  defendants,  to 
such  person  as  they  shall  appoint  ;  and  why  all 
deeds,  evidences,  and  writings,  in  the  custody  of 
the  lessor  of  the  plaintiff,  relating  to  the  title  of 
such  mortgaged  premises,  should  not  be  delivered 
up  to  the  defendants,  or  to  such  person  or  persons 
as  they  shall  for  that  purpose  nominate  and  ap- 
point. By  the  Court. 

No.  47. 


The  Hke,  on  Doe,  on  the  demise  of  A.  B.  )  Upon  reading  the 

payment  of  \ 

jg£fa»*        v.  Roe.    .........  5  affidavit  of  the  de- 

fendant, it  is  ordered,  upon  the  said  defendant's 
forthwith  bringing  into  Court  the  whole  rent  due 
and  in  arrear,  and  such  sum  to  answer  the  costs 
as  the  master  shall  direct,  that  further  proceedings 


APPENDIX.  373 

in  this  cause  be  stayed.  And  it  is  referred  to  the 
master  to  compute  the  said  arrears  of  rent,  and  to 
tax  the  said  costs  ;  and  upon  the  said  defendant's 
paying  the  said  lessor  of  the  plaintiff  what  the  said 
master  shall  find  due,  and  allow  for  the  said  rent 
and  costs,  that  all  further  proceedings  therein  at 
to  the  non-payment  of  the  said  rent,  be  stayed. 
But  it  is  further  ordered,  if  the  said  lessor  of  the 
plaintiff  has  any  other  title  to  the  premises  in 
question,  than  for  the  non-payment  of  the  said 
rent,  he  is  at  liberty  to  proceed.  Upon  the  mo- 
tion of  Mr. 

By  the  Court. 

No.  48. 


AN  ACT  in  addition  to  the  act  concerning  Judg- 
ments and  Executions. 

Passed  April  12,  1820. 

I.  BE  it  enacted  by  the  People  of  the  State  o/*sheruftto 
New-  York,  represented  in  the  Senate  of  Assembly.  &y  execution 

•?'  certificates 

That  whenever  any  lands  or  tenements  shall  be  *• not  decds- 
sold  after  the  first  day  of  May  next,  by  virtue  of 
any  execution  already  issued,  or  that  shall  here- 
after be  issued,  it  shall  be  the  duty  of  the  sheriff 
or  other  officer,  instead  of  executing  a  deed  for 
the  premises  sold,  to  give  to  the  purchaser  or  pur- 
chasers of  such  lands  or  tenements  a  certificate  in 
writing,  describing  the  lands  or  tenements  pur- 
chased, and  the  sum  paid  therefor,  and  the  time 
when  the  purchaser  will  be  entitled  to  a  deed  for 
such  lands  or  tenements,  unless  the  same  shall  be 
redeemed,  as  is  provided  in  and  by  this  act :  And  TO  be  fiiea. 
such  sheriff  or  other  officer  shall,  within  ten  days 
the  time  of  such  sale,  file  in  the  office  of  the 


374  APPENDIX. 

clerk  of  the  county,  a  duplicate  of  such  certificate, 
signed  by  him  ;  and  such  duplicate  certificate,  or 
a  certified  copy  thereof,  shall  be  taken  and  deem- 
ed evidence  of  the  facts  therein  contained. 
Defendant*         II.  And  be  it  further  enacted.  That  it  shall  and 

may  redeem 

their  land*     may  be  lawful  for  any  defendant,  his  heirs,  execu- 

•old  on  exe-  *  * 

eution.  tors,  administrators,  or  grantees,  whose  lands  or 
tenements  shall  be  sold  after  the  first  day  of  May 
next,  by  virtue  of  any  execution,  within  one  year 
from  and  after  such  sale,  to  redeem  such  lands  or 
tenements,  by  paying  to  the  purchaser  thereof,  his 
executors,  administrators,  or  assignees,  or  to  the 
sheriff  or  other  officer  who  sold  the  same,  for  the 
benefit  of  such  purchaser,  the  sum  of  money  which 
may  have  been  paid  on  the  purchase  thereof,  to- 
gether with  the  interest  thereon,  at  the  rate  of 
ten  per  centum  per  annum,  from  the  time  of  such 
sale ;  and  on  such  payment  being  made  as  afore- 
said, the  said  sale,  and  the  certificate  thereupon 
granted,  shall  be  null  and  void. 

inwhatcases      III.  And  be  it  further  enacted,  That  it  shall  also 

other  credi-     •       •'"•••  ,.  /.  /•» 

tors  may  re-  be  lawful  for  any  creditor  of  any  defendant,  whose 

deem,  fcc. 

lands  or  tenements  shall  have  been  sold  under  any 
execution,  after  the  first  day  of  May  next,  who 
shall  have  a  decree  in  chancery,  or  a  judgment  at 
law  against  such  defendant,  which  shall  be  a  lien 
on  the  real  estate  of  such  defendant,  and  for  the 
executors  or  administrators  of  any  creditor  having 
such  decree  or  judgment,  within  fifteen  months 
after  such  sale,  in  the  default  of  the  said  defend- 
ants, to  redeem  the  lands  or  tenements  which  shall 
have  been  so  sold,  in  the  manner  prescribed  in  the 
second  section  of  this  act ;  but  that  the  defendant 
shall,  in  all  cases,  be  entitled  to  redeem  such  lands 
Defendants  or  tenements  in  preference  to  any  creditor :  And 

have  prefer- 

nn'          whenever  any  creditor  shall  redeem  such  lands  or 


APPENDIX.  375 

tenements  as  aforesaid,  he  shall  be  entitled  to,  and 
acquire  all  the  rights  of  the  original  purchaser 
thereof;  and  any  other  creditor  having  such  de- 
cree or  judgment  aforesaid,  and  the  executor  or 
administrator  of  any  such  creditor,  may,  in  like 
manner,  redeem  the  lands  or  tenements  so  sold, 
within  fifteen  months  from  the  sale  thereof,  and  ismomhs.i- 
may  become  entitled  to  all  the  rights  and  privi- 
leges acquired  by  any  other  creditor,  by  reimburs- 
ing to  him,  his  executors,  administrators  or  as- 
signs, the  sum  which  may  have  been  paid  by  such 
creditor,  together  with  interest  thereon  from  the 
time  of  such  payment,  at  the  rate  of  seven  per 
centum  per  annum,  and  by  also  satisfying  any  prior 
judgment  or  decree  which  such  creditor  may  have  . 
against  such  defendant;  and,  in  like  manner,  any 
other  creditor  having  such  decree  or  judgment 
aforesaid,  and  the  executor  or  administrator  of 
any  such  creditor  may,  within  the  time  aforesaid, 
redeem  such  lands  or  tenements,  from  such  first, 
second,  third,  or  any  other  creditor ;  and  upon 
such  redemption  being  made  in  manner  aforesaid, 
the  title  of  the  original  purchaser  shall  be  vested 
in  such  creditor  or  his  executors  or  administrators. 

IV.  And  be  it  further  enacted,  That  if  such  lands  sheriff  to 
or  tenements  so  sold,  shall  not  be  redeemed  as  « hen  i.W  i» 
aforesaid,  either  by  the  defendant  or  by  such  ere-  «i- 
ditor  as  aforesaid,  within  fifteen  months  from  the 
time  of  such  sale,  it  shall  be  the  duty  of  the  sheriff 
or  other  officer  who  shall  have  sold  the  same,  or 
his  executors  or  administrators,  to  complete  such 
sale,  by  executing  a  deed  of  the  premises  so  sold 
to  the  said  purchaser;  and  if  any  creditor  shall  re- 
deem such  lands  or  tenements  as  aforesaid,  it  shall 
be  the  duty  of  such  sheriff,  or  other  officer,  on  the 
expiration  of  fifteen  months  from  the  time  of  such 


376  APPENDIX. 

sale,  to  execute  a  deed  of  the  premises  so  sold,  to 
such  creditor,  as  the  assignee  of  the  original  pur- 
chaser, and  such  deeds  shall  be  as  valid  and  effec- 
tual in  the  law,  as  if  such  creditor  had  been  the 
original  purchaser. 
waste  by  V.  And  be  it  further  enacted.  That  if,  at  any 

drhtorhow  J  % 

j.roventeu.  time  after  the  sale  of  the  premises  as  aforesaid,  and 
before  the  expiration  of  the  time  allowed  for  re- 
deeming the  same,  the  debtor,  or  any  person  in  the 
possession  of  the  premises  thus  sold,  shall  do  any 
acts  of  waste  thereon,  it  shall  be  lawful  for  the 
chancellor  of  this  state,  or  for  the  first  judge  of 
the  county  wherein  said  premises  are  situate,  on 
application  by  the  purchaser,  or  his  authorized 
.  agent  for  that  purpose,  and  on  satisfactory  proof 
being  made  of  waste  having  been  committed  by 
such  debtor  or  occupant,  to  grant  an  order  against 
such  wrong-doer  to  stay  any  further  waste,  under 
such  penalties  as  such  chancellor  or  judge  shall 
impose,  conformable  to  the  powers  and  regula- 
tions incident  to  a  Court  of  Chancery  in  all  other 
cases,  and  which  are  hereby  extended  to  such  first 
judge  for  that  purpose. 


No.  49. 

AN  ACT  to  amend  an  act,  entitled  "  an  act  con- 
cerning Distresses,  Rents,  and  the  renewal  of 
Leases,"  passed  April  5th,  1813,  and  for  other 
purposes. 

Passed  April  13,  1820. 
?ro«*ding:»       I.  BE  it  enacted  by  the  People  of  the  State   of 

when  a  te- 
nant holds     New-  York,    represented   in   Senate   and   Assembly, 

That  if  any  tenant  or  lessee  at  will,  or  at  sufler- 
ance,  or  for  part  of  a  year,  or  one  or  more  years. 


APPENDIX.  377 

or  from  year  to  year,  of  any  houses,  lands,  mes- 
suages,  tenements  or  hereditaments ;  or  the  as- 
signs, under  tenants,  or  legal  representatives  of 
such  tenant,  or  lessee,  shall,  after  the  expiration 
of  his,  her,  or  their  term,  hold  over  and  continue 
in  possession  of  the  same,  or  any  part  thereof, 
without  the  permission  of  the  landlord  or  lessor  of 
the  premises ;  or  if  any  such  person  or  persons 
shall  so  hold  over,  without  such  permission   as 
aforesaid,  after  default  in  the  payment  of  rent, 
pursuant  to  the  contract  or  agreement  under  which 
such  premises  shall  be  held,  it  shall  be  lawful  for 
such  landlord  or  lessor,  or  his  heirs,  executors,  ad- 
ministrators, attorney,  agent,  bailiff,  receiver,  or 
assigns,  to  make  oath,  in  writing,  of  the  expiration 
of  such  term,  or  of  such  default  in  the  payment  of 
such  rent,  and  of  such  holding  over,  without  per- 
mission as  aforesaid,  and  thereupon  to  apply  to  the 
mayor,  recorder,  orany  one  of  the  aldermen,  special 
justices,  justices  of  the  Marine  Court,  or  any  one 
of  the  assistant  justices  of  the  city  of  New- York, 
if  the  premises  are  situated  in  the  said  city  ;  or  to 
any  judge  of  the  Court  of  Common  Pleas,  or  mayor 
or  recorder  of  any  other  city  or  county  within 
which  the  demised  premises  may  be  situated,  who. 
on  receiving  such  oath  in  writing,  are  hereby  re- 
quired to  issue  a  summons,  requiring  the  person 
or  persons  in  possession  of  the  said  premises,  or 
claiming  the  possession  thereof,  forthwith  to  re- 
move from  the  same,  or  show  cause  before  the 
magistrate  issuing  such  summons,  on  the  same  day, 
or  within  such  time,  not  exceeding  five  days  after 
the  service  thereof,  as  to  him  shall,  under  all  the 
circumstances,  appear  to  be  reasonable,  why  such 
landlord  or  lessor,  or  his  heirs,  assigns,  or  legal  re- 
presentatives, should  not  be  put  in  possession  of 
48 


378  APPENDIX. 

the  said  premises  ;  and  if  no  sufficient  cause  hr 
>hown  to  the  contrary,  such  magistrate  shall  issue 
an  order  or  warrant,  to  be  directed  to  the  sheriff 
of  the  county  within  which  the  premises  are  situa- 
ted, or  to  any  constable  or  marshal  of  any  city  or 
town,  commanding  him  to  remove  all  persons  from 
the  said  premises,  and  to  put  such  landlord  or 
lessor,  or  his  or  their  heirs,  executors,  adminis- 
trators or  assigns,  into  the  possession  thereof.  And 
the  said  sheriff,  constable,  or  marshal,  is  hereby 
required  to  obey  and  execute  such  order  or  war- 

rroviso.  rant :  Provided  always,  That  in  case  of  a  tenancy 
at  will  or  sufferance,  the  landlord  or  lessor  shall 
give  three  months  notice  in  writing  to  the  tenant 
or  tenants  of  the  premises,  requiring  him  or  them 
to  remove  therefrom,  before  applying  to  a  magis- 
trate for  relief  under  this  act :  which  notice  shall 
be  served  by  delivering  the  same  to  such  tenant 
or  tenants,  or  some  person  of  proper  age  residing 
on  the  premises  :  and  if  the  tenant  or  tenants  can- 
not be  found,  or  there  be  no  such  person  residing 
on  the  premises,  then  such  notice  shall  be  served 
by  putting  up  the  same  on  the  most  conspicuous 
part  of  the  premises,  and  where  the  same  can  be 

K.irther  pro-  the  most  conveniently  read :  And  provided  also, 
That  in  the  case  of  a  proceeding  for  non-payment 
of  rent,  as  before  mentioned,  there  shall  have  been 
a  demand  of  such  rent,  or  three  days  notice,  in 
writing,  by  the  person  or  persons  entitled  to  such 
rent,  to  the  person  or  persons  owing  the  same,  re- 
quiring the  payment  of  the  said  rent,  or  the  deli- 
very of  possession  of  the  premises,  to  be  served  in 
the  same  manner  as  last  provided, 
jury  wb«n  U.  And  be  it  further  enacted.  That  if  such  per- 

t<.    be    gum-  .  .  . 

gon  or  persons  in  possession  of  such  premises  as 
aforesaid,  or  claiming  the  possession  thereof,  shall 


APPENDIX.  379 

make  oath  that  the  term  in  the  premises  in  ques- 
tion is  not  expired,  or  that  he,  she,  or  they,  do  not 
hold  or  claim  the  said  premises  contrary  to  an 
agreement  then  existing  between  them  and  the 
person  or  persons  applying  for  such  summons  as 
aforesaid ;  or  in  the  case  of  an  application  by  rea- 
son of  the  non-payment  of  rent,  if  the  person  or" 
persons  against  whom  such  application  is  made, 
shall  make  oath  that  such  rent  is  not  in  arrear  and 
unpaid,  the  said  magistrate,  or  any  other  of  the 
•aid  magistrates  before  named,  in  their  respective 
cities  and  counties,  shall  issue  a  precept,  directed 
to  the  sheriff  of  the  said  city  or  county,  command- 
ing him  to  summon  a  jury  of  twelve  men,  qualified 
to  serre  as  jurors  in  courts  of  record,  to  appear 
before  the  magistrate  issuing  such  precept,  either 
on  the  day  of  issuing  such  precept,  or  on  the  day 
thereafter,  who  shall  hear  the  proofs  and  allega- 
tions of  the  parties,  and  under  the  advice  and  di- 
rection of  such  magistrate  last  mentioned,  shall 
hear  and  determine  the  matter  in  difference  be- 
tween the  said  parties ;  that  the  said  jury  shall  be 
empanelled  and  sworn  as  is  usual  in  trials  by  jur> 
in  courts  of  record  ;  and  if  the  verdict  of  the  said 
jury  shall  be  for  the  landlord  or  lessor,  or  person 
or  persons  applying  for  the  summons  in  the  first 
instance,  as  herein  provided,  the  said  magistrate, 
before  whom  such  trial  by  jury  shall  take  place, 
shall  issue  a  similar  order  or  warrant  to  put  the 
landlord  or  lessor,  or  person  or  persons  applying 
for  such  summons  in  the  first  instance  as  aforesaid, 
into  the  possession  of  the  premises,  as  is  provided 
for  in  the  first  section  of  this  act. 

III.  And  be  it  further  enacted,   That  in  the  case  s«urhy  for 
of  a  proceeding  under  this  act  for  the  non-pay-  non-'w- 

f  •?.,.        j       •    •  f  ^  •  A  mcnt,**. 

ment  of  rent,  if  the  decision  of  the  magistrate  or 


380  APPENDIX. 

the  verdict  of  the  jury,  as  the  case  may  be,  shall 
be  against  the  person  or  persons  of  whom  such 
rent  is  claimed,  the  contract  or  agreement,  and 
the  relation  of  landlord  and  tenant  between  the 
parties  shall  he  thereafter  cancelled  and  annulled, 
unless  the  person  or  persons  owing  such  rent  shall 
forthwith  pay  the  said  rent,  and  the  costs  of  pro- 
ceeding under  this  act,  or  give  such  security  to  the 
person  or  persons  entitled  to  the  said  rent,  for  the 
payment  thereof,  with  costs,  in  ten  days  there- 
after, as  shall  be  satisfactory  to  the  said  magistrate : 
And  further,  That  no  proceeding  for  non-payment 
of  rent  shall  take  place  under  this  act,  in  any  case 
where  it  shall  appear  that  satisfaction  for  such 
rent  might  have  been  obtained  by  distress. 
Construction  IV.  And  be  it  further  enacted.  That  every  agree- 

of  certain  .  .    . 

ag^eemeuts.  ment  which  shall  be  made  tor  the  hiring  or  occu- 
pation of  any  lands  or  tenements  in  the  city  of 
New- York,  and  which  shall  not  particularly  spe- 
cify the  time  during  which  such  hiring  or  occupa- 
tion is  to  continue,  shall  be  deemed  and  held  valid 
until  the  lirst  day  of  May  next  after  the  time  when 
the  possession  under  such  agreement  shall  com- 
mence ;  and  that  unless  it  is  otherwise  agreed 
upon  between  the  parties  to  such  agreement,  the 
rent  under  such  agreement,  or  the  compensation 
to  the  landlord,  for  the  use  and  occupation  of  the 
premises,  shall  be  payable  on  the  usual  quarter 
days  for  the  payment  of  rent  in  the  said  city,  and 

paroi  agree-  be  recoverable  accordingly.     And  further,  That 

inrnts  not  va-  .  .^  ,. 

lid,  except    no  agreement  by  parole,  and  not  in  writing,  lor 

for  on*  year.  .  . 

the  letting  or  hiring  of  any  lands  or  tenements  in 
the  city  of  New- York,  shall  be  valid  or  binding  in 
law,  for  any  longer  period  than  one  year  from  the 
making  thereof. 


APPENDIX.  381 

V.  And  be  it  further  enacted,  That  if  any  per-  faiie  rear- 

ing perjury. 

son  who  shall  be  sworn  to  any  matter  by  virtue  of 
this  act,  shall  in  such  matter  swear  falsely,  such 
person  shall,  on  conviction  thereof,  be  subject  to 
all  the  pains  and  penalties  of  perjury. 

VI.  And  be  it  further  enacted,  That  nothing  in  aighu  rewr- 
this  act  contained,  shall  be  construed  to  impair  the  of  officer*. 
rights  of  any  landlord  or  lessor,   under  existing 

laws ;  and  that  the  magistrates  and  officers  shall 
be  entitled  to  the  like  fees,  under  this  act,  as  for 
similar  services  under  any  other  act  or  acts,  to  be 
paid  by  the  party  against  whom  the  decision  shall 
be  pronounced,  and  recovered  of  him  by  the  other 
party  in  an  action  of  debt. 

VII.  And  be  it  further  enacted.  That  it  shall  and  •"&•>*  topm- 

*  sue  goods  ta- 

may  be  lawful  for  any  lessor  or  landlord,  or  any  ke?  *™y  '° 

*  J\  J   defraud  laixl- 

person  or  persons  by  him  for  that  purpose  lawfully  lord- 
empowered,  at  any  time  within  the  space  of  thirty 
days  next  after  the  rent  shall  have  become  due 
and  payable,  to  pursue,  take  and  seize,  all  such 
goods  or  chattels  of  such  tenant,  or  lessee,  as  a  dis- 
tress for  the  arrears  of  rent,  as  may  have  been 
conveyed  away  or  carried  from  off  the  demised 
premises,  and  that  so  much  of  the  thirteenth  sec- 
tion of  the  act  "  concerning  distresses,  rents,  and 
the  renewal  of  leases,"  as  is  repugnant  hereto,  be, 
and  the  same  is  hereby  repealed. 

VIII.  And  be  it  further  enacted,  That  any  te-  special da«n- 
nant  or  tenants,  who  shall  hold  over  the  posses-  tenams^hoM- 
sion  of  any  lands,  tenements  or  hereditaments, 
against  the  provisions  of  the  twenty-first  section 

of  the  said  act  "  concerning  distresses,  rents,  and 
the  renewal  of  leases,"  in  addition  to  the  double 
rent  thereby  given,  shall  be  liable  to  pay  and  re- 
munerate the  landlord  or  lessor  for  all  special  da- 
mages whatsoever,  to  which  such  landlord  or  les- 


382  APPENDIX. 

sor  may  be  subjected,  by  reason  of  such  holding 
over,  to  be  recovered  in  like  manner,  as  in  and  by 
the  said  act  is  provided. 
When  land-      IX.  And  be  it  further  enacted,  That  if  the  te- 

lord  may  re- 

rioT  £T*™~  nant  or  lessee  °f  anv  lands  or  tenements  shall  take 
the  benefit  of  any  insolvent  act,  or  shall  abscond 
and  leave  the  premises  vacant,  the  landlord  or 
lessor  shall,  in  either  such  case,  and  on  due  proof 
thereof,  be  entitled  to  the  like  proceedings,  for 
obtaining  the  possession  of  the  said  premises  as 
are  provided  in  the  first  section  of  this  act,  unless 
the  tenant  or  lessee  shall  give  such  security  to  the 
landlord  or  lessor  of  the  said  premises,  for  the  pay- 
ment of  the  rent  thereof,  as  the  same  shall  become 
due,  as  shall  be  satisfactory  to  the  magistrate  to 
whom  application  shall  be  made  for  such  proceed- 
ings as  aforesaid. 

certain  act  X.  And  be  it  further  enacted,  That  the  act,  en- 
titled "  An  act  to  amend  an  act,  entitled  '  an  act 
concerning  distresses,  rents,  and  the  renewal  of 
leases',  passed  April  5th,  1813,  and  for  other  pur- 
poses," passed  April  21st,  1818.  be,  and  the  same 
is  hereby  repealed. 


A 

ABATEMENT,  Page 

mode  of  pleading  ID  ....      243 

jurisdiction  of  another  court  may  be  pleaded  in        .       242 

ancient  demesne,  good  plea  in  .  .       244 

not  created,  by  death  of  lessor  of  plaintiff    .  .      288 

defendant,  after  assizes  began  298 

plaintiff,  in  ancient  practice       181 

ABATOR,  not  within  stat.  32  Hen.  VIII.  c.  38.  .        43 

ACCORD,  formerly  good  plea  in  ejectment         .  242  (7) 

ACTIONS, 

real,  when  first  disused        ....  9 

statute  of  fines  only  includes    .  91 

consolidation  of  .  .  .  237.  323 

ADMINISTRATOR.— Vide  Personal  Representative. 
ADMINISTRATION  Letters  of,  when  evidence  .      271 

ADMITTANCE,  to  Copyholds, 

surrenderee  cannot  bring  ejectment  before  .  .        66 

cannot  devise  before     .  .  .66 

heir  may  bring  ejectment  before     .  .  67.  257 

except  against  lord  67.  257 

title  relates  to  time  of  surrender  after          .  .        66 

copyholds  cannot  be  forfeited  before  .  .      284 

manner  of  proving  ....       257 

to  chambers,  not  similar  to  .  .  .66  (y) 

ADVOWSON,  ejectment  will  not  lie  for  an        .  .         16 

AFFIDAVIT, 

to  stay  proceedings  under  4  Geo.  II.  c.  28    .  169  (r) 

7Geo.  II.  c.  20    .  .       824 

lor  leave  to  plead  ancient  demesne  .  .      244 


384  INDEX. 

AFFIDAVIT,  Page 

for  motion  for  trial  at  bar                 .  .  .       291 

in  ancient  practice,  of  sealing  lease  .  .       179 
of  service  of  declaration, 

must  be  annexed  to  declaration  .  .       216 

when  to  be  made          .             .         ,  .  .       216 

by  and  before  whom  to  be  made  .  .       217 

facts  to  be  stated  in      .             .  .  217,218 

must  be  positive,  and  why         .  .  .       218 

when  more  than  one  necessary  .  .       219 

defective,  how  remedied           .  .  .       219 

AFTER-MATH  .  ...        19 

AGREEMENT, 

void,  when  implied  tenancy  created  by  .  .107 

for  lease,  proviso  for  re-entry  in  .  .170 

what  words  will  create      .  .  109,  &c. 

for  increase  of  rent  does  not  alter  tenancy  .  .       135 

ALDER  CARR            .            .            .  .  .21 
ALTERNATIVE  Notice—  Fide  Notice  to  quit. 

AMENDMENT  of  declaration               .  .  .200 

ANCIENT  Demesne,  plea  of                 .  .  .244 
ANCESTOR, 

dying  under  disability  to  enter         .  .  .60 

possessed,  evidence  of  seisin  .  .       252 

descent  from  common,  how  proved  .  .       253 
APPEARANCE, 

how  regulated  by  common  law         .  .  .      226 

statute     ....      227 

who  may  appear  as  landlords           .  .  229,  &c. 

of  what  term  to  be  entered               .  .  .       240 

how  to  be  made       ....  237,  &c. 

time  allowed  for                   .             .  .  220,  &c. 

for  part  only,  now  unnecessary         .  .  .       235 

cannot  be  entered  by  landlord  for  tenant  .  .       238 

by  parson  for  right  to  perform  service  233 

if  trick  to  put  off  trial  .  .       233 

when  permitted  by  wife  alone          .  .      232 

by  landlord,  motion  for,  when  to  be  made  .  ., .  ^   239 


INDEX.  385 

APPEARANCE, 

power  once  assumed  by  king's  bench  respecting 
how  lessor  to  proceed  after 
ARTICLES  of  church  of  England, 

when  proof  of  subscription  to  necessary          .  .     273 

ASSIGNEK, 

of  a  bankrupt,  may  maintain  ejectment  .  .       69 

evidence  in  ejectment  by  .  .     275 

assignment  to,  not  breacli  of  general  co- 
venant not  to  assign  165,  If  6 

by  estoppel,  not  within  32  Henry  VIII.  c.  34.  .     76 

of  lesser,  when  notice  to  quit  to  be  given  to  1-40,  141 

of  mortgagee,  may  maintain  ejectment  .  .       62 

when  exempted  from  giving  notice  to  quit     107 

may  defend  as  landlord  .  .     231 

evidence  in  ejectment  by  .  .     283 

of  reversion,  may  maintain  ejectment,  in  what  cases  74.  172 

evidence  in  ejectment  by  .  .     282 

ASSIGNMENTS  of  Lease,  when  presumed  .         283,  284 

ATTACHMENT, 

granted  on  breach  of  consent  rule          .  .     23G,  301 

for  disturbing  sheriff  in  execution         .  .     309 

how  in  the  case  of  a  peer          .  .  .     304 

not  granted,  on  consent  rule  till  signed  by  lessor     236.  2  14 

upon  stat.  7  Geo.  II.  c.  20.  .  .     327 

ATTESTATION  OF  WITNESSES, 

to  devise  of  freeholds,  what  sufficient  .  .     260 

how  to  be  made  .  .     264 

form  of  ...     265 

ATTORNEY, 

must  not  be  lessee  in  ejectment  .  .     178,  (o) 

forms  in  ancient  practice,  executed  by  .  .179 

warrant  of  to  confess  judgment,  when  lease  forfeited  by  166 

ATTORNMENT  to  stranger  destroys  tenancy    ....         .     119 

AWARD,  ejectment  will  lie  on  ...       89 

B. 
BAIL,  common, 

must  be  filed,  in  what  cases  .  .     223 


386  I  N  D  E  X. 

BAIL,  Page 

to  file,  when  part  ol  consent  rule                 .  .     233 

time  of  filing          .             .             .             .  .223 
BAIL,  in  error, 

who  may  be        .....     313 

sum  required  of               .             .             .  .314 

when  chargeable  with  mesne  profits         .  .     315 

in  action  for  mesne  profits                     .             .  .     330 

HAIL1FF,  service  of  declaration  upon,  not  good  .     213 
BANKRUPT,  assignee  of — Vide  Assignee  of  Bankrupt. 
BANKRUPTCY. 

proviso  in  lease  to  re-enter  on,  good              .  .     147 

and  sale,  breach  of  covenant  to  occupy            .  .     166 

no  plea  to  action  for  mesne  profits      .              .  .     333 

BARGAINEE  OF  REVERSION,  within  32  Hen.  VIII.  c.34. 75 

BEAST-GATE                .            .             .            .  -       21 

BILL  OF  PEACE,  when  granted  in  ejectments  .     316 

BIRTHS,  how  proved                    .             .             .  265,256 

BIS  PETITUM,  no  objection  in  ejectment             .  .       22 

BODY  POLITIC— Vide  Corporation 

BOG 22 

BOILARY  OF  SALT                  .            .            .  .17 
BREACHES,  particulars  of, 

lessor,  how  and  when  compelled  to  give          .  .317 

evidence  confined  to  breaches  contained  in  .     282 

BUILDING  by  encroachment,  when  to  be  mentioned  in  demise  27 

BURGAGE 23 

C. 

CAPIAS  AD  SATISFACIENDUM,  writ  of. 

when  lessor  entitled  to  for  costs          .             .  300,  &c. 

when  to  be  sued  out  by  defendant  for  costs  .     302 
CASUAL  EJECTOR. 

in  ancient  practice, 

when  fint  used,  and  why             .             .  .12 

suit  proceeds  in  name  of            .             .  .170 

cannot  confess  judgment             .             .  .181 

in  modern  practice, 

declaration  against,  how  entitled            .  .     185 


INDEX.  387 

CASUAL  EJECTOR,  judgment  aeainst  page 

motion  for,  for  want  of  appearance, 

on  what  founded  .  .  .     216 

not  to  be  moved  in  court  in  common  cases  219 

at  what  time  to  be  made  220,  221,  222 

on  4  Geo.  II.  c.  28.  .  .     159 

on  nonsuit  for  not  confessing  .     290 

rule  for,  when  and  how  drawn  up  .  .     222 

when  common  bail  necessary  before  .  .     222 

how  and  when  to  be  siffned  222.  234.  259.  247.  289 

in  what  cases  set  aside,  and  how         .  .  .     225 

how  entered,  when  some  of  several  defendants  confess     290 

semblc  not  equivalent  to  trial  under  4  Geo.  II.  c.  28.         157 

CATTLE-GATES          .  .  .  .  .21 

CERTIORARI  writ  of,  ejectment  cannot  be  removed  by       180 
CESTUI  QUE  TRUST, 

lease  by,  will  not  bar  trustee  from  recovering  in  ejectment  86 

when  legal  estate  vested  in  .  .  .    81,  &c. 

when  possession  of,  not  adverse  to  trustees  .       52 

when  demise  to  be  laid  by  ...     188 

CESTUI  QUE  USE,  within  32  Hen.  VIII.  c.  34.  .       75 

CHAMBER         ......       24 

CHAPEL, 

ejectment  will  lie  for  ....       16 

how  to  be  described  .  .  .  .16 

service  of  declaration  for  .  .  .     213 

CHURCH 16 

CHURCH-WARDENS,  service  of  declaration  upon  .  213 
CLERK  OF  TH  E  RULES,  ejectment  book  how  to  be  kept  by  222 
CLOSE,  ejectment  will  lie  for  a,  when  .  .  .24 

COAL  MINES  in  Durham,  how  described  in  demise  .  26 
CO-DEFENDANT,  landlord  may  be  with  tenant  .  226 

CODICIL,  signing  of,  not  signing  of  will  .  .     263 

COMMON  BAIL.— HVfe  Bail. 
COMMON,  Tenants  in— Vide  Tenant. 
COMMON, 

for  what  kinds  of,  ejectment  will  lie  .  .       17 

encroachment  on,  belongs  to  whom  .  .       5ft 


388  INDEX. 

COMMON,  Pafe 

of  pasture  generally,  trood  after  verdict  .              .     296 

COMPETENCY  OF  WITNESSES         .  .          250,265 

CONDITION,  [{reach  of.— Vide  Proviso. 

CONFESSION  OF  LEASE,  &c.             .  .             .     235 

CONSENT  RULE, 

when  invented              .              .              .  .14 
form  and  terms  of                    ....     233 

how  formerly  drawn  up                         .  .              .     234 

is  not  evidence  of  defendant's  possession  .              .     235 
when  nonsuit  for  want  of  lease,  &c.  prevented  by        .     235 

how  drawn  up,  in  case  of  joint-tenants,  &c.  .     236 

lessor  of  plaintiff  must  join  in                •  •              •     236 

attachment  li^s  for  breach  of               .  .          236,  237 

when  to  be  produced  at  trial               .  .              .     276 

CONSOLIDATION  RULE        .            .  .            .237 

CONTEMPT  OF  COURT, 

misconduct  on  delivery  of  declaration  is  .             184,  (j) 

assigning  death  of  plaintiff  for  error  is  .              .     181 

release  of  plaintiff  to  tenant  is              .  .              .181 

CONTINUAL  CLAIM,  what  is,  and  how  made  .       99 

CONUSEE,of  Statute  Merchant  or  Staple, 

may  maintain  ejectment       70 

evidence  by  .             .     272 

COPYHOLDER, 

may  maintain  ejectment         .             .  .             .65 

cannot  forfeit  lands  before  admittance  .             .     284 

evidence  in  ejectment  by         .             .  256.  269.  271 
devisee  of — Vide  Copyholds, 
surrenderee  of — Vide  Copyholds. 

lessee  of  may  maintain  ejectment       .  .              .67 

evidence  in  ejectment  by     .  .             .     272 

COPYHOLDS, 

not  affected  by  descents  cast  .             .       41 

within  slat.  32  Hen.  V11I.  c.  34.  .              .       76 

not  within  stat.  of  uses           .             .  .             .85 

stat.  29  Car.  II.  c.  3.         .  -  .'             .       72 

enfranchisement  of,  may  be  presumed  .             .     285 


INDEX.  389 

COPYHOLD,  Pa«e 

what  sufficient  will,  to  pass                 .             .  .     267 

forfeiture  of,  rannot  he  before  admittance       .  .     283 

who  may  take  advantage  of         .  .       64 

q   if 21  Jac.  I.e.  16.  operates  on  .       65 

COPYHOLDS,  devisee  or  surrenderee  of, 

before  admittance  cannot  devise           .  .         67 
maintain  ejectment     66.  190 

evidence  in  ejectment  by                         .  270,271 

ancient  demesne,  no  plea  in  ejectment  for  .       244 
receipt  of  customary  rent  for,  does  not  create  tenancy    118 
CORPORATIONS, 

cannot  make  a  discontinuance           .              .  .40 

are  within  32  Hen.  VIII.  c.  33.         .  .43 

may  maintain  ejectment       .             .             .  .79 

how  notice  to  quit  to  be  given  to                    .  .       124 

officers  of,  may  give  notices  to  quit               .  .       121 

how  demise  to  be  laid  by     .             .              .  .       193 

how  name  of  to  be  slated  in  demise              .  .       194 

CORN  MILLS 23 

COSTS  payable, 

how  under  4  Geo.  II.  c.  28.      .             .  .154 

by  infant  lessor,  when               .             .  .       304 

by  feme,  after  baron  co-defendant's  death  .       304 
when  to  one  of  several  defendants  acquitted      .       304 

by  such  defendants  as  refuse  to  confess  .       289 

by  lessor,  to  which  defendant  he  pleases  .       305 
not  payable, 

by  lessor,  if  he  join  not  in  consent  rule  245.  305 
by  lessor  suing  in  forma  pauper  is,  though  dispau- 

pered        .  .  .  .         '    .       305 

by  executor  of  lessor  in  any  case           .  302.  304 

to  executor  of  lessor  on  consent  rule,  when  .       302 
how  to  be  recovered  by  lessor, 

on  judgment  for  want  of  appearance     .  301.332 

on  nonsuit  for  not  confessing                 .  .       301 

when  some  of  several  defendants  confess  .       301 

<^n  verdict  against  tenant          .             .  .       302 

landlord  302 


390  INDEX. 

COSTS, 

feme  sole  married  before  exe- 

tion         .  .  .       302 

each  defendant  liable  for  the  whole  .  .       301 

general  remedy  for  recovery  of  '    .  .       303 

defendant  when  entitled  to  by  8  &  9  W.  3.  c.  11.     .       304 
how  to  be  recovered,  by  defendant, 

in  the  king's  bench     .  .       303 

how  to  be  recovered,  by  defendant, 

in  the  common  pleas  .       303 

when  plaintiff's  lessor  is  a  peer     304 

security  granted  for,  in  what  cases  .  317,  &c. 

proceedings  staid  till  payment  of,  when       .  3iy,  &c. 

in  action  for  mesne  profits, 

when  security  for  granted         .  .  .       330 

certificate  for  necessary,  if  damages  under  40s.       338 

COTTAGE       ......        23 

COURTS  OF  EQUITY, 

ousters  of  leaseholders  formerly  redressed  by  .  7 

application  to,  under  4  Geo.  II.  c.  28.  .  155.  157 

interference  of,  to  prevent  repeated  ejectments         .       316 
mesne  profits,  before  entry  to  avoid  fine,  recoverable  in  335 
COURT-ROLLS, 

when  evidence         .  .  .  .  270 

court  will  grant  inspection  of  ...       270 

COVENANT,  writ  of 2 

COVENANT,  action  of,  will  waive  a  forfeiture,  when  161 

COVENANTS, 

what  incident  to  the  reversion          .  .  .75 

what  are  good         .....       147 

how  dispensed  with  .  .  .       172 

breach  of,  when  tenancy  determined  by       .  .       147 

who  may  bring  ejectment  on         .      74.  172, 173 

actual  entry  not  necessary  on         .  90.  146 

landlord  not  bound  to  notice         .  .         62 

what  will  be  a  waiver  of  .  .       173 

evidence  in  ejectment  on  .  .       282 

what  amounts  to,  not  to  assign     .  ]  62.  165 

let          .  164,  165 


INDEX.  391 

COVENANTS.  Page 

put  away  .       163 

part  with  .        164 

commit  waste     .       167 

exercise  a  trade        168 

to  actually  occupy  .       167 

insure  .  .        168 

deliver  up  trees  .       169 

givenoticeof  fellinijtimber  170 

to  repair  generally,  independent  of  to  repair  after  noJice  169 

what  affected  by  proviso  containing  the  word  hereinafter  170 

CREDITORS  may  witness  wills  .  .  .266 

CUSTOMARY  ESTATES  not  affected  by  descents  cast        41 

CUSTOMS, 

to  give  three  or  twelve  months  notice  to  quit,  good  131 
must  be  strictly  proved  ....  131 
manner  of  proving  ....  258 

D. 

DAMAGES, 

in  ejectment, 

action  may  proceed  for,  though  term  expire        .  204 

lessor  die  .  288 

are  nominal  only  ....  289 

formerly  comprehended  real  injury  sustained      .  328 

in  action  for  mesne  profits     ....     337 
DEATH, 

of  lessor,  no  abatement  of  suit             .             .  .     306 

q.  if  srire  facias  necessary  after      .  .311 

security  given  for  costs  upon           .  .     318 

costs  not  payable  to  defendant  upon  .     301 

of  defendant,  not  cause  of  error  when             .  .     298 

suggestion  of,  how  entered      .  .     298 

q.  if  scire  facias  necessary  upon  .     311 

of  plaintiff,  no  abatement  of  suit         .             .  .181 

to  assign  for  error,  is  a  contempt  .     181 

of  person,  how  proved             .             .             .  253,  &c. 

DECLARATION, 

how  framed  in  ancient  practice         .            .  .178 


892  INDEX. 

DECLARATION,  pag« 

modern  practice          .  .  .13 

action  for  niesue  profits  .  .     332 

how  entitled  .  .  .  .  .185 

may  be  by  bill,  or  by  original  .  .  .     185 

service  of,  suit  commenced  by  .  .  .184 

resembles  service  of  writ  .  .     209 

service  of,  must  be  before  essoi«;n  day  .  .     207 

should  be  on  party  actually  in  possession        209 

how  made  in  common  cases, 

upon  tenants  in  possession          .     209 

wife  of  tenant  .  .211 

child  or  servant  of  tenant    .     212 

when  tenant  absconds  213,  &c. 

in  ejectment  for  a  chapel  .     213 

poorhouse       .     213 

when  some  of  the  houses  are  un- 

tenanted     216 

upon  one  tenant  in  possession,  good  against  all     212 
wife  of  one  tenant  not  good  against  all         212 
not  good,  upon  person  having  keys  .     213 

receiver  under  Court  of  Chan- 
cery    213 

irregular,  when  made  good         .  .     211,  &c. 

court  will  not  antedate  .  .  .     215 

tenant  must  give  notice  of,  when         .  .     228 

may  be  good  for  part,  and  bad  for  part  •     216 

in  action  for  mesne  profits     .  .  .332 

amendment  of, 

sembh,  may  be  before  appearance        200,  201 

may  be  in  demise,  term,  &c.  203,  &c. 

names  of  parties  .  .     205 

description  of  premises  .     205 

not  permitted  to  real  injury  of  defendant       204 

DECLARATIONS  of  persons  deceased,  when  evidence       254 

DEED,  demise  by,  deed  need  not  be  proved         .  .     194 

now  unnecessary          .  .  .193 

DEFENDANT, 

who  may  be  admitted.  .  .  .    228,  &c. 


INDEX.  393 

DEFENDANT,  Page 

death  of,  no  abatement  of  suit  when  .  .     298 

cause  of  error,  when        .  .  .     299 

evidence  in  ejectment,  on  the  part  of  .  .     285 

in  action  for  mesne  profits,  who  should  be  .     330,  &c. 

when  entitled  to  make  the  first  address  to  the  jury     .     25P 

DEMISE,  on, 

with  lessor's  title  .  .186 

declaration  may  be  entitled  prior  to  .  .       185 

on  a  joint,  lessors  must  have  joint  interest    .  .       ISC 

who  may  make  a  joint  or  several     .  .  .       187 

when  several  distinct  necessary        .  .  .       187 

under  a,  of  whole,  undivided  moiety  may  be  recovered  187 

must  be  after  lessor's  title  accrues  .  .       189 

should  be  soon  after  lessor's  title  accrues,  and  why         180 

not  necessary  to  state  premises  to  be  in  a  parish  in         195 

if  parish  is  stated  in,  must  be  proved  as  laid  .       196 

premises,  how  described  in,  when  more  than  one  parish  19J" 

need  not  state  exact  quantities  to  be  recovered         .       197 

time  of  laying,  by  heir          ....       190 

posthumous  son   .  .  .190 

surrenderee  of  copyholds  ..       190 

assignees  of  bankrupt      .  .       190 

insolvent  debtor      .       190 

when  fine  levied          .  .  .       191 

against  tenants  at  will  .  .       191 

when  commencement  of  tenancy  unknown  192 

how  to  be  laid,  by  corporations        .  .       193 

overseers  of  a  parish  .  .       191 

in  ejectment  for  tithes  .  .194 

by  masters  of  colleges,  &c.      .  .       195 

infants         .  .  .195 

period  of,  caution  respecting  .  192, 193 

is  transitory  .  .  .  .181 

may  be  amended  after  its  expiration  .       203 

intendment  is  in  favour  of,  after  verdict       .  .       295 

DESCENTS  CAST, 

definition  of  .  40 

50 


;<J4  INDEX. 

DKSCENTSCAST, 

happen  when  .  .  .  .  .40 

doctrine  of,  not  applicable  to  ejectments,  and  why      40  (y) 

summary  of  .  ,  .45 

what  persons  are  not  affected  by  .  .41 

right  of  entry,  why  tolled  by  ...         42 

when  tolled  by  .  .  43,  &c. 

need  not  be  pleaded  in  ejectment     .  .  .       242 

DESCRIPTION 

of  premises,  what  certainty  required  in  .20 

of  parish  of  demised  premises,  material       .  .       196 

DEVISEES, 

not  affected  by  descents  cast  .  .  .43 

of  copyholds,  cannot  devise  before  admittance          .         6C 

refusal  to  pay  rent  to,  when  no  disclaimer  of  tenancy       118 

may  maintain  ejectment      .  .  .  .78 

defend  ejectment  .  .  .  .231 

evidence  by,  of  freeholds      .  .  .  259,  &c. 

copyholds     ....       270 

terms  for  years         .  .  .       271 

cannot  bring  ejectment  for  rent  due  to  them  as  executors  158 

DEVISE, 

to  trustees,  legal  estate  vested  in  them  by,  when       80,  &c. 

of  a  term,  no  breach  of  covenant  not  to  assign         .       1 GS 

to  witnesses  to  a  will,  when  void      .  .  .       265 

.of  freehold  interest,  how  to  be  made  .  .       260 

DISCLAIMER  of  Tenancy         .  .  .  .118 

DISCONTINUANCE, 

definition  of  .  .  34 

happens  in  what  cases          .  .  .  .34 

different  modes  of  making  .  .  .  .35 

when  caused  by  levying  a  fine          .  .  36,  &c. 

law  respecting,  how  altered  by  32  Hen.  VIII.  c.  28.         38 

11  Hen.  VII.  c.  20.          38 
cannot  be  effected  by  a  corporation  .  .        40 

DISSEISIN  at  Election  .  .  .  .  40  (y) 

DISSEISOR, 

within  stat.  32  Hen   VIII.  c.  33.      .  .  .43 

donee  or  feoffee  of,  not  within  stat.  32  Hen.  VIII.  c.  33     44 


INDEX.  395 

DISTRESS  for  rent,  Page 

when  waiver  of  notice  to  quit           .             .  144.161 

DOUBLE  RENT,  action  for      .  .       143 

DOUBLE  VALUE,  action  for  .            .            .  124.  143 

DOWER,  ejectment  will  not  lie  for,  before  assignment  68 

E. 
ECCLESIASTICAL  PERSONS, 

not  within  stat.  21  Jac.  I.  c.  16.       .             .  46 
drinise  by,  how  laid              ....        193 

EJECTIONS  FIRM^E,  writ  of  6 
EJECTMENT, 

definition  of             ...  1 

formerly  only  action  of  trespass        ...  1 

when  term  first  recovered  in              .              .  .8 

how  and  when  titles  first  tried  in                    .  .9 

confined  to  possessory  titles,  and  why          .  .         10 

will  lie,  for  what  things       .             .             .  16,  &c. 
of  bringing  a  second            ....        315 
EJECTOR,  CASUAL.— Vide  Casual  Ejector 
ELEGIT,  Tenant  by, 

may  maintain  ejectment       . 
evidence  in  ejectment  by 
ENTRIES, 

on  court  rolls,  when  evidence           .             .  .       270 
in  a  bible,  when  evidence    ....       256 

in  parsons'  books,  when  evidence     .             .  .       273 
ENTRY,  ACTUAL, 

formerly  always  made,  and  why       .             .  10.  l'ir> 
is  still  necessary, 

when  fine  with  proclamations  levied,  and  why   90,  &c. 

when  ancient  practice  is  used     .           .  .       178 
is  not  necessary, 

if  party  levying  fine  has  not  a  freehold  interest  93,  &c. 

when  fine  at  common  law  levied            .  .         91 

when  all  the  proclamations  not  completed  .         96 

when  fine  is  once  avoided         .             .  .99 

when  fine  is  accepted               .            .  .96 

in  ejectment  on  the  forfeiture  of  a  lease  .       146 


INDEX. 

ENTRY,  ACTUAL, 

on  fine  by  joint  tenant,  &c.  without  previous  ouster    96 

to  avoid  statute  of  limitations,  hut  prudent  .       100 

before  fine  levied,  will  not  avoid  subsequent  fine  .         92 

party  making  must  have  right  to  enter         .  .         93 

time  of  making  to  avoid  a  fine         .              .  .94 

by  whom  to  be  made  ....  94.  96 

how  to  be  made       .             .             .             .  .98 

ejectment  must  be  brought  within  a  year  after  .         09 

consent  rule  no  substitute  for                         .  .       235 

ENTRY, 

right  of,  must  be  in  lessor     .             .             .  33.  145 

proved  at  the  trial,  and  how  247-  280 

how  taken  away             .             .             .  .34 

is  not  devisable              .             .             .  .94 

must  accrue  before  day  of  demise          .  .      189 

of  judgment — Vide  Judgment. 

of  plaintiff,  how  stated  in  declaration             .  .      198 

confessed  by  consent  rule             .  .      233 

when  pleadable  puis  darrien  continuance        246 

of  one  joint  tenant,  &c.  entry  of  all                .  .        97 

lease  for  life  cannot  be  avoided  without         .  .      175 

years  cannot  he  avoided  without,  when  175 

of  nonsuit  for  not  confessing  lease,  &c.         .  .       234 

may  be  made  pending  error,  when                .  .       315 

upon  demised  lands,  substantial  time  of       .  136,  &c. 

when  and  how  proved  in  action  for  mesne  profits  334 

ERROR, 

judgment  quod  defendcns  sit  quietus  is          .  .       298 

death  of  defendant,  is  not     ....       298 

want  of  suggestion  of,  is  .       299 

rule  not  to  commit  waste  pending     .             .  .  -    315 

bail  in                       .                          .             .  .       314 

action  for  mesne  profits  will  lie  pending       .  .       329 

elegit  for  mesne  profits  may  be  sued  out  after  .       339 

ERROR,  writ  of, 

will  not  lie,  before  verdict     .             .             .  312 

against  casual  ejector      .             .  .       312 


INDEX.  J9? 

KRROR,  writ  of,  Page 

except  in  ancient  practice  312  (/) 

if  defendant  do  not  confess  .  .       312 

how  brought  by  landlord     ....       312 

no  stay  of  execution,  until  bail  put  in  .       314 

ESCHEAT,  Lord  by, 

not  within  32  Hen    VIII.  c.  34.          ..  .         75 

may  defend  ejectment,  quaere  .  .  .       232 

ESSOIGN-DAY, 

declaration  must  be  served  before     .  .  .       207 

in  King's  Bench  received  by  tenant  before,  212,  &c. 
ESTATE-TAIL,  how  discontinued        .  .34 

EVIDENCE, 

on  the  part  of  the  lessor, 

general  points  of  ....       247 

by  heirs,  at  common  law  .  .  252,  &c. 

to  copyhold  lands          .  .  .       257 

customary         ....       257 

devisees,  of  freeholds       .  .  .  259,  &c. 

copyholds      ....       270 

terms  for  years          .  .  .271 

personal  representatives  .  .  .       271 

joint  tenants,  &c.  against  companions       .  .       275 

landlords  against  tenants 

on  the  termination  of  leases  .  .       277 

notices  to  quit  .  .  .       278 

the  forfeiture  of  leases  .  .       282 

assignees  of  the  reversion  .  .  .       283 

lords  of  manors  ....       2:;4 

surrenderees  of  copyholds  .  .  .       272 

lessees  of  copyholders      ....       272 

mortgagees          .  .  .  .  ,283 

tenants  by  elegit  ....       272 

conusees  of  statutes  merchant  or  staple     .  .       272 

by  rectors  or  vicars  ....       273 

guardians  .....       274 

assignees  of  bankrupts      ....       274 

r»n  the  part  of  the  defendant  .  .  .      286 


398  INDEX. 

EVIDENCE, 

in  actions  for  mesne  profits, 

when  profits  antecedent  to  demise  are  to  be  recovered  334 
subsequent  to  demise  .  335, 336 

EXECUTION, 

sheriff,  may  demand  indemnity  before  .  .       308 

power  of,  to  enforce  .  .  .       308 

staid  by  consent  rule,  when  .  .  .      234 

is  made  at  lessor's  peril       .  .  .  21.307 

how  to  be  taken  out, 

on  judgment  for  want  of  an  appearance  224 

after  verdict  against  landlord  .  .       306 

when  some  defendants  die    .  .  .       300 

when  a  sole  defendant  dies     .  .  .311 

when  defendant  marries  before  execution      .       311 

cannot  be  taken  out  pending  error    .  .  .       277 

not  staid  by  writ  of  error  till  bail  put  in        .  .       314 

set  aside  if  lessor's  right  cease  before  writ  issued     .       306 

landlord  must  show  error  brought  as  cause  against         312 

must  only  be  for  premises  recovered  .  .       307 

or  courts  will  interfere       .       307 

sometimes  confined  by  rule  to  premises  recovered  307 

how  to  be  made  by  sheriff    ....       308 

instances  of  insufficient         ....       308 

attachment  granted  for  disturbing    .  .  .       308 

when  second  granted  .  309,  &c. 

when  scire  facias  necessary  before  .  .  .311 

executed,  when  judgments  set  aside  after    .  225.239 

cannot  apply  under  4  Geo.  II.  c.  28.  after        154 

7  Geo.  II.  c.  20.  after        324 

for  mesne  profits,  staid  until  error  determined          .      329 
of  will,  under  statute  of  frauds          .  .  260,  &c. 

EXECUTION,  writ  of 

its  nature     .....       30C 

how  drawn  up          ....       307 

lessor  may  enter  peaceably  without  .  .       305 

EXECUTOR—  Vide  Personal  Representative. 

EXTINGUISHMENT  of  estate  .      171 


INDEX.  399 

F. 

FEME  COVERT,  Page 

cannot  constitute  an  attorney           .             .  .179 

devise  to  trustees,  to  suffer  to  receive  rents  .         81 

receipt  of  rent  by,  after  separation  from  baron  .       114 

service  of  declaration  upon               .              .  .       258 

may  defend  ejectment  against  baron,  when  .       232 

liable  to  costs,  if  baron  co-defendant  die       .  .       304 

judgment  against,  not  evidence  against  baron  .       337 

statute  of  limitations  runs  not  against           .  .         46 

baron  cannot  discontinue  lands  of    .             .  .38 

not  affected  by  descents  cast            .             .  .41 

FEOFFMENT,  by  tenant  for  years       .  94 

FIERI  FACIAS,  writ  of, 

when  lessor  entitled  to  for  costs       .             .  302,  &c. 

when  sued  out  by  defendant  for  costs           .  .      303 

FINE, 

when  entry  necessary  to  avoid          .            .  90,  &c. 

when  not                  ....  92.  95 

when  avoided  by  entry         .             .             .  .93 

when  discontinuance  worked  by       .             .  35.  93 

by  joint  tenant,  &c.  no  ouster  of  companion  .         56 

tenant  for  life  accepting,  is  a  forfeiture         .  .         96 

and  non-claim,  need  not  be  pleaded            .  .       242 
raesne  profits  before  avoidance  of,  how  recovered     .       335 

FISHERY         ....  18 

FORFEITURE, 

by  copyholder. — Vide  Copyholds 
of  lease. — Vide  Covenant 

FREE  BENCH            .            .  67 

FURZE  and  HEATH 

G. 

GAVELKIND                          .  .57 
GLEBE, 

parson  cannot  bring  ejectment  for,  after  sequestration     80 

evidence  in  ejectment  for    '.  274 

GORSE  and  FURZE  25 


400  INDEX. 

ARDIANS,  Page 

in  socage  or  testamentary,  may  bring  ojrctment      .         68 

make  actual  entry  for 

ward         97 
evidence  in  ejectments 

by  274 

H. 
HABEAS  CORPUS,  ejectments  removed  from  inferior 

courts  by  .  .  .  .  .180 

1IABERE  FACIAS  POSSESSIONEM,  writ  of, 

nature  of    .  '.  .  .  .  .       306 

how  drawn  up  .....  307 
return  of,  should  be  made  .  .  309,310 

when  evidence  in  action  for  mesne  profits    .  .       334 

Vide  Execution. 

II  ACE  RE  FACIAS  SEISLNAM,  writ  of  .       30G 

HAY-GRASS  ...  19 

HEARSAY,  when  evidence        .  .  254,  &c. 

HEIRS, 

time  allowed  for  entry  of,  by  21  Jac.  I.  c.  16.  .         GO 

demise  by,  when  to  be  laid  .  .          •  .       190 

staying  proceedings  by,  under  7  Geo.  II.  c.  20.  .  325 
may  defend  ejectment  ....  330 
are  competent  witnesses  in  ejectment  .  .  252 

may  examine  all  the  witnesses  to  a  will       .  .       267 

evidence  by,  at  common  law  .  .  .       252 

to  copyholds  .  .  .       257 

customary        ....       257 
HERALD'S  BOOKS,  evidence  of  pedigree       .  .       257 

HERBAGE      ...  19 

HEREDITAMENTS,  corporeal,  recoverable  in  eject- 
ment          ......        16 

HIGH-WAY 18 

HOP-YARD      ....  .20 

HOUSE.—  Fide  Messuage 

I. 

IMPARLANCE,  new  declaration  formerly  delivered  af- 
ter .....  201  (n) 


INDEX.  401 

IMPOSSIBLE  YEAR,  Page 

rejected  in  notice  to  quit      .  .  .  .127 

ouster  in  declaration        .  .  .       199 

INFANT, 

may  maintain  ejectment      .  .  .  .69 

when  bound  by  his  attorney's  acts  .  .114 

must  give  notice  to  quit       ....       120 
security  for  costs,  when  .  195. 317 

liable  for  costs,  when  ....       305 

demise  by,  how  laid  ....       195 

INFERIOR  COURTS, 

ancient  practice  necessary  in,  and  why        .  .       177 

ejectments,  how  removed  from         .  .  .180 

when  jurisdiction  of  not  pleadable  .  .181 

how  to  proceed  in  .  .  .  .180 

INJUNCTION  against  bringing  ejectments,  when  granted   316 

INTRUDER,  not  within  32  Hen.  VIII.  c.  33.     .  .         43 

IRELAND, 

premises  described  by  terms  used  in  .  .21 

security  for  costs  on  demise  by  resident  in  .       318 

ISSUE, 

must  agree  with  declaration  .  .  .       245 

how  made  up  .....       245 

variance  between  and  record,  how  to  proceed  when       290 
general,  commonly  left  with  consent  rule     .  237-  241 

in  action  for  mesne  profits 

J 
JOIN  T-TEN  ANTS, 

may  maintain  ejectment  against  co-tenants,  when  56.  88 

when  aflected  by  21  Jac.  1.  c.  16.                  .  .         54 

demise  by,  how  laid             ....  187 

entry  of  one  is  entry  of  all                ...  97 

possession  of  one  is  possession  of  all             .  .  56.  96 

what  acts  of  are  ousters  of  companions        .  .         56 

fine  by  one  no  ouster  of  others          .             .  .96 

must  all  join  in  notice  to  quit           .             .  121 

notice  to  quit  to  one  will  bind  all,  when        .  .       125 

service  01  declaration  upon  one,  good  against  all  •      212 
51 


402  INDEX. 

JOINT-TENANTS,  pafe 

special  consent-rule,  when  granted  to  .  .       236 

evidence  in  ejectments  by  ...       27f> 

may  bring  action  against  co-tenants  for  mesne  profits     331 

JUDGMENT,  in  ejectment, 

is  not  final  ....  294.  315 

possession  only  is  recovered  by        .  .  294. 315 

must  be  entered  according  to  the  verdict      .  .       295 

intendment  after,  in  favour  of  claimant         .  295,  &c. 

how  entered  relirta  verificatione       .  ,  .       245 

when  defendant  will  not  confess  .       289 

whole  premises  are  recovered      .       297 

part  of  whole  premises  are  recovered  297 

some  parcels  only  .  .       298 

sole  defendant  dies  .  .       298 

some  of  several  die          .  .       298 

against  feme,  when  baron  dies  .       298 

is  not  evidence  in  a  second  ejectment  .  .       192 

when  evidence  in  action  for  mesne  profits        189>  335,  336 

when  entered  for  want  of  plea         .  .  .       242 

formerly  entered  quod  defendens  capiatw  298  (/) 

casual  ejector  cannot  confess  .  .  .       181 

proceedings  to,  in  ancient  practice  .  I79j  180 

mesne  profits  recoverable  after,  in  all  cases  .      330 

arrest  of,  motion  for  ....       29* 

against  casual  ejector. — Vide  Casual  Ejector. 

JURISDICTION, 

may  be  pleaded  to  in  ejectment        .  .  .       243 

of  inferior  court,  cannot  be  pleaded  when     .  .       181 

rule  to  plead  to,  when  granted         .  .  .       243 

how  drawn  up  .  .       244 

K. 

KING, 

may  maintain  ejectment  semble        .  .  •        79 

how  under  8  Hen.  VI.  c.  16. and  18  Hen.  VI.  c.  6.  79 

is  not  within  21  Jac.  I.  c.  16.  46 

when  concluded  by  9  Gee.  III.  c.  16.  .  .  46  (g] 


INDEX.  403 

Page 

KITCHEN       ...  .24 

KNEAVEofLAND     .  .  .22 

L. 

LADY-DAY,  notice  to  quit  at  generally,  how  construed        127 

LAND, 

how  to  be  described  in  demise          .  .  .24 

piece  of,  ejectment  will  lie  for,  when  .  .         24 

general  occupation  of,  what  is          ...       103 

LANDLORD, 

jus  dispnnendi  in  .  .  .  .147 

by  common  law  cannot  be  sole  defendant,  qucere     226.  228 
who  may  defend  as,  under  11  Geo.  11.  c.  19.  227,  &c. 

may  defend  in  tenant's  name  .  .  .       233 

how  to  appear  as     .  .  .  .  .238 

how  to  proceed  if  improper  person  admitted  to  defend  as  232 
when  defendant,  judgment  how  signed  233,  234.  239 

error,  how  brought  by          ....       312 
evidence  in  ejectments  by 

on  termination  of  lease          .       277 
notice  to  quit         .  .       278 

forfeiture  of  lease  .       282 

LATITAT 224 

LAY  IMPROPRIATORS,  evidence  by,  for  tithes  .       274 

LEASE, 

by  cestui  que  trust,  no  bar  to  trustee  .  .         85 

possession  under  treaty  for,  will  not  create  a  tenancy     117 
when  tenancy  created  under  a  void  .  .       107 

when  entry  necessary,  upon  a  forfeiture,  to  avoid  174 

cannot  exist  without  a  reversion       .  .  .163 

who  may  make  a  joint         ....       186 
determinate  generally  at  third  or  sixth  years,  how 

construed  .  .  .  .  .129 

assignment  of,  when  presumed         .  .  .       283 

forfeiture  of — Vide  Covenant. 

agreement  for,  what  words  will  create          .  108,  &c. 

«vidence  by  landlord  in  ejectment,  on  expiration  of        277 

forfeiture  of         ?sr. 


404  INDEX. 


in  ancient  practice,  actually  executed            .  10.  178 

in  modern  practice,  feigned  only      .             .  .13 

confessed  by  defendant  .      233 

LIMITATIONS,  statute  of                     .             .  .46 

who  not  within         ....  46.  65 
quaere,  if  lord  of  manor  bound  by,  upon  forfeiture  by  a 

copyholder            .             .             .             .  .65 

when  joint-tenant,  &c.  affected  by    .             .  .55 

extension  of  time  in  second  section  how  construed,  46.  59,  &c. 

does  not  operate  between  trustee  and  cestui  que  trust        52 

against  lord  of  manor,  when  .         54 

entry  not  necessary  to  avoid             .             .  .150 

operation  of,  will  bar  ejectment         .           '  .  46.  75 

barred  by  payment  of  interest  on  mortgage     53 

need  not  be  pleaded  in  ejectment     .             .  .       242 

must  be  pleaded  in  action  for  mesne  profits  .       333 

LIQUORICE,  demise  of  lands  producing            .  .       129 

LODGINGS,  notice  to  quit,  how  regulated          .  .       131 

LUNATIC, 

may  maintain  ejectment       .              .              .  .88 

committee  of,  cannot            .              .              .  .88 

service  of  declaration  upon              '.             .  .       215 

stat.  21  Jac.  I.  c.  16,  does  not  run  against  .        46 

M. 

MADDER,  demise  of  lands  producing                .  .       129 

MAINTENANCE        .            .            .  10.  178  (o) 

MANOR,  ejectment  will  lie  for  a            .  25 
MANOR,  Lord  of  a 

may  maintain  ejectment  on  a  forfeiture,  when  .         63 

evidence  by,  on  a  forfeiture             .  .       264 

on  a  seizure,  pro  defectu  ienentii  .       284 

in  ejectment  for  mines               .  .       285 

quaere,  if  21  Jac.  I.  c.  16.  runs  against  a      .  .         65 

qucere,  if  entitled  to  defend  ejectment           .  .       232 

MARRIAGE,  how  proved          .             .             .  .256 

MESNE  PROFITS,  action  for, 

when  invented  .      328 


INDEX.  405 

MESNE  PROFITS,  action  for,  Page 

nature  and  uses  of  .  328 

may  be  waived 

for  assumpsit  for  use  and  occupation,  when  329 

for  debt  on  4  Geo.  II.  c   28.  .       329 

11  Geo.  II.  c.  19.  quaere  329  (q) 

may  be  brought  pending  error         .  .  .       329 

is  bailable  at  discretion        ....       329 

must  be  brought,  by  whom  .  .  .       330 

against  whom        .    .         .  .       331 

declaration  in,  how  framed  .  .  .       332 

pleas  in,  what  are  good        ....       333 

money  cannot  be  paid  into  court  in  .  .       333 

evidence  in, 

vhen  profits  antecedent  to  demise  are  recovered  333, 334 
subsequent  to  demise          .  334,335 

damages  in, 

have  reference  to  time  of  defendant's  occupation    331 
not  confined  to  rent  of  premises  .  .       337 

may  include  costs  of  ejectment  .  .       338 

profits  before  fine  avoided,  not  recoverable  as         336 
costs  in, 

second  ejectment  staid  till  paid  .  .       321 

judge  must  certify,  if  under  40s.  .  .       338 

when  unnecessary  after  error  .  .  .       339 

MESSUAGE, 

ejectment  will  lie  for  .  .  .23 

part  of     .  .  .    %        .         24 

notice  to  quit,  how  regulated  .  .  .       ISO 

rent  must  be  demanded  at,  when  .  .       149 

MICHAELMAS, 

notice  to  quit  at  generally,  how  construed    .  .       127 

holding  generally  from,  how  construed         .  .       127 

MILLS  .  ...  .  .  .28 

MINES  .....  26. 285 

MOIETY,  undivided, 

cannot  be  a  disseisin  ef       .  .  .  .55 

recoverable  on  demise  of  whole        .  .  .187 

MOOR  and  MARSH     .  25 


406  INDEX. 

MORTGAGEES,  fage 

may  maintain  ejectment,  when        .            ,  .62 

when  required  to  give  a  notice  to  quit          .  106,  &c. 

how  protected  by  4  Geo.  II.  c.  28.               .  .164 

may  defend  as  landlords  .  .  .  .  231 
proceedings  by,  when  staid  under  7  Geo.  II.  c.  20.  324,  &c. 
evidence  in  ejectments  by  ...  283 
assignee  of — Vide  Assignee. 

MORTGAGOR, 

not  tenant  to  mortgagee      ....       106 

competent  witness  for  mortgaged  lands  251,  252 

tenant  of,  need  not  give  notice  of  ejectment  by  mortgagee  228 

qucere,  if  liable  for  mesne  profits   .  331,  332 

when  tenant  to  mortgagee            .  .       106 

MOUNTAIN    .            .            .            .            .  .22 

N. 
NONSUIT, 

for  not  confessing  lease,  &c. 

how  to  proceed  on                     .             .  289, 290 

error  cannot  be  brought  after                .  .       312 

costs,  how  recoverable  on         .             .  300,  301 

when  not  recoverable  on              .  .       301 

lessor  liable  to  before  signing  of  consent  rule  .       240 

NOTICE  TO  APPEAR, 

to  whom  to  be  addressed     .             .             .  205,  206 

by  whom  to  be  subscribed                .             .  .       207 

time  of  appearance  of  tenant,  how  regulated  by  206,  &c. 

may  be  amended     ....  207,  20C 

how  framed  in  ancient  practice        .             .  11.  178 

qucere,  if  necessary  in  inferior  courts            .  .       180 
NOTICE  OF  TRIAL, 

same  as  in  other  actions      ....       245 
proceedings  staid  after 
NOTICE  TO  QUIT, 

origin  and  history  of           .             •  !02,  &c. 
must  be  given, 

in  common  tenancies,  from  year  to  year  .       103 

under  implied  tenancies  from  year  to  year  .       107 


INDEX.  407 

NOTICE  TO  QUIT,  Pag. 

to  personal  representatives,  when        .  .       HP 

is  not  necessary, 

at  expiration  of  lease  .  •  .       102 

from  mortgagee  to  mortgagor  .       106 

when  tenant  attor.ns  to  another  .  .119 

to  under-tenants  of  mortgagor,  when  106.  331 

from  assignee  of  mortgagee,  when       .  .       107 

time  of  giving          .  .  .         103.129-133.136 

time  for  expiration  of 

in  common  tenancies  .  •    '        129- 133 

in  cases  of  lodgings      ....       131 

under  implied  tenancies  .  .  .       133 

particular  customs,  or  agreements  131,  &c. 

when  tenant  enters  at  several  times      .  .       136 

irregularity  as  to,  how  waived  .  .       280 

generally,  at  end  of  current  year,  good        .  .132 

when  to  be  so  framed        .  .  .132 

on  a  particular  day,  must  be  day  tenancy  began      .       133 

by  whom  to  be  given  .  .  .  120,  &c. 

to  whom  to  be  given  .  .  .  122,  &c. 

how  to  be  served     .....       123 

framed     ....  124,  &c. 

by  parol,  when  good  ....       124 

must  be  in  writing,  when     ....       124 

how  to  be  addressed  .  .  .  .125 

must  not  be  alternative  or  ambiguous          .  .       125 

what  so  deemed  .  .  .  125,  &c. 

must  contain  all  things  comprised  in  the  demise  128 

may  be  waived,  and  how     .  .  .  139,  &c. 

may  be  given  by  tenant       .  .  .  .145 

implied  tenancy,  when  rebutted  by  .  .117 

service  of,  how  to  be  proved  .  .  278,  &c. 

when  and  how  evidence  of  commencement  of  tenancy,  280,&c. 

power  of  giving,  necessarily  incidental  to  tenancy 

from  year  to  year  103.  108,  109 

evidence  necessary  in  an  ejectment  on          .  278,  &c. 

subscribing  witness  to,  unnecessary  .  1*5 


408  INDEX. 

O. 

OCCUPANT,  special    .  73 

ORCHARD 20 

OUSTER, 

actual,  what  acts  amount  to  .  .  .55 

evidence  of,  when  necessary  .      56.  178.  276 

consent  rule  substitute  for,  when       .  234,  236 

of  plaintiff,  how  stated  in  declaration  .  198,  &c. 

nonsuit  for  not  confessing          .  232,  233 

of  tithes,  how  laid         .  .  .       200 

OVERSEERS  of  the  poor,  service  of  declaration  upon          213 

when  demise  should  be  laid  by    191 

P. 

PANNAGE 20 

PARCENERS, 

may  maintain  ejectment  against  each  other  when       55.  88 
when  affected  by  21  Jac.  1.  c.  16.     .  .  .57 

demise  by,  how  laid  .  .  .  .186 

entry  of  one  is  entry  of  all  .  .  .  .         97 

possession  of  one  is  possession  of  all  .  55.97 

what  acts  of,  are  ousters  of  companions       .  .         54 

fine  by  one  no  ouster  of  others         .  .  .54 

must  all  join  in  notice  to  quit  .  .  120,  121 

notice  to  quit  to  one  will  bind  all,  when        .  .123 

service  of  declaration  on  one,  good  against  all         .       212 
special  consent  rule,  when  granted  to  .  .       236 

evidence  in  ejectments  by  ...       276 

may  bring  action  for  me.sne  profits  .  .       334 

PARISH  REGISTERS,  when  evidence,  and  for  what          264 

PARISH, 

need  not  be  stated  in  demise  .  .  .       195 

if  stated  material     .....       196 
what  description  of  sufficient  .  .  196,197 

how  stated  when  more  than  one       .  .  .       197 

amendment  of  permitted      ....       205 

PARSON, 

cannot  bring  ejectment  for  glebe  after  sequestration        80 


INDEX.  40y 

P  VRSON,  Page 

cannot  defend  for  right  to  perform  divine  service  233 

evidence  in  ejectments  by     .  .  .  .       273 

PARTICULARS  of  breaches,  defendant  entitled  to  .  31? 
PASSAGE-ROOM  .....  23 
PASTURE  OF  SHEEP  ....  20 

PEASE,  acres  of  .  .  .  .35 

PEDIGREE— when  an  how  proved        .  .  253,  &c. 

PEER,  attachment  against,  how  granted  .  .       304 

PERSONAL  REPRESENTATIVES, 

may  maintain  ejectment      .  .  .  .72 

not  on  4  Geo.  II.  c.  28.  if  land  devised  159 
must  give  notice  to  quit  ....  1^0 
can  take  advantage  of  a  forfeiture,  when  171,  172 

included  generally,  in  proviso  for  executors  to  re- 
enter  121,  122 

are  not  hound  by  consent  rule         .  .  288,  289 

entitled  to  costs,  when          .  .  .       302 

liable  for  costs,  when  .  .  .       303 

consent  of,  when  necessary  to  a  devise        .  .         72 

evidence  in  ejectments  by  ...       271 

not  liable  for  mesne  profits,  when    .  .331 

PLEA, 

of  general  issue  is  not  guilty  .  .  .       242 

special,  seldom  pleaded  ....  242 
to  jurisdiction  allowed  ....  243 
ancient  demesne  pleadable  in  ejectment  .  .  244 

how  pleaded  .  .  .       244 

accord  and  satisfaction,  formerly  a  good     .  242  (/) 

of  release  by  defendant,  good  formerly        .  .       Ibl 

lessor  of  plaintiff  cannot  now  be  pleaded     2-15,  246 
puts  darrien  continuance      .  .  .  245, 246 

rightly  entitled,  not  a  nullity  .  .  242  (i) 

signing  judgment  for  want  of  .  .  242,243 

withdrawn,  judgment  how  entered  after       .  245,  246 

rn  action  for  mesne  profits, 

of  general  issue  is  not  guilty     .  .  .       333 

52 


4iu  INDEX. 

PL  I'.  A.  Page 
in  action  for  mesne  profits, 

statute  ofliraitations,  good                 .  .       333 

bankruptcy,  not  good            .              .  .       333 

PLEA-ROLL,  death  of  defendant  suggested  on  .       298 

POOL  OF  WATER      ....  18 
POSSESSION, 
adverse, 

what  will  amount  to     .             .             .  47,  &c. 

for  twenty  years,  good  title  in  ejectment  .         76 
vacant, 

ancient  practice  necessary  on,  and  why  .       177 

premises  must  be  entirely  deserted  to  constitute  177  (&) 

formal  proceedings  on               .             .  .178 

prima  facie  evidence  of  property     •             •  29 

priority  of,  q.  if  good  title  in  ejectment         .  31  (M») 

how  to  be  delivered  by  sheriff         .             .  21.  307 

lessor  of  plaintiff  must  be  entitled  to             .  .         33 

recovery  in  ejectment  is  of  the         .             .  .       294 

who  have  a  joint     .....       186 

of  one  joint  tenant.  &c.  is  possession  of  all  .         55 

of  defendant  how  proved      ....       248 

POSTEA, 

how  indorsed,  if  defendant  will  not  confess  .  .       289 

if  some  of  several  will  not     .  .       290 

when  costs  taxed  on  ....       300 

POSTHUMOUS  SON,  demise  by,  when  laid     .  .       190 

PRACTICE,  ancient, 

general  detail  of               .             .             .  .9,  &c. 

inconveniences  attending              .             .  .11 
when  now  necessary         ....       177 

how  to  seal  lease,  &c.  in               .             .  178,  179 

how  to  proceed  to  judgment  in     .              .  179,  180 

no  person  admitted  to  defend  in  .             .  .179 
PRACTICE,  modern, 

when  invented     .             .             .             .  .13 

outline  of                           .              .              .  .13 

not  applicable,  to  vacant  possessions       .  .177 

in  inferior  courts  .       177 


INDEX.  411 


PREBEND  AL-STALL  .... 

PREMISES, 

how  described  in  demise     .  .  .     20.  195,  &c. 

mis-description  of,  when  fatal  .  .  .196 

PRIM  A  TONSURA      .  .  .  .  .19 

PROBATE  OF  WILL,  when  evidence,  and  when 

not  269,  270,  271 
PROCEEDINGS,  staying  of, 

how  and  when  staid,  under  4  Geo.  II.  c.  28.  157,  &c. 

7  Geo.  II.  c.  20.  28,  &c. 

staid,  when  variance  between  issue  and  record         .       290 
until  particulars  of  breaches  delivered  .       317 

when  staid,  until  security  for  costs  given, 

in  action  of  ejectment          .       318 
in  action  for  mesne  profits         330 
in  second  ejectment, 

till  costs  of  first  paid      .  319,  &c. 

action  for  mesne  pro- 
fits paid      .  .       3^2 
pending  error  in  first           .       323 

not  staid  in  second  ejectment  when  party  in  custody       322 

how  staid,  when  two  ejectments  are  depending  at  once  323 

several  ejectments  on  one  title  323 

PROCESS  not  sued  out  in  ejectment      .  .  .       184 

PROVINCIAL  TERMS,  premises  described  by  21 

PROVISO  for  re-entry-— See  Covenant. 

PUISpARRlEN  CONTINUANCE     .  .  .      245 

PUR  AUTRE  VIE,  estates  held  .  .         73 

Q. 

QUARE  EJECIT  INFRA  TERMINUM,  writ  of  .  3 

QUARE  LMPEDIT,  patron  must  resort  to,  when  .  273 

QUARTER  OF  LAND,            .             .  .  22 

R. 
RECEIVER  IN  CHANCERY, 

may  give  notice  to  quit        ....       121 
service  of  declaration  upon,  not  good  .  .       2L3 


41S  INDEX. 

RECORD,  .      page 

how  made  tip  .....       245 

variance  between  issue  and,  how  to  proceed  when  290 

RECTORS, 

may  maintain  ejectment,  when         .  .  .80 

evidence  in  ejectments  by    .  .  .  .       273 

RE-ENTRY,  proviso  for, 

origin  of  .  .  .  .  .146 

holding  not  adverse  if  not  enforced  .  51,  52 

operates  only  during  the  lease         .  .  .        176 

for  rent  in  arrear, 

forms  at  common  law  upon        .  .  .149 

when  now  necessary        150.  156 
how  and  when  to  proceed  upon,  under  4.  G.  II. 

c.  20.  155,  &c. 

evidence  in  ejectment  upon         .  .  .281 

for  breach  of  covenant — Vide  Covenant, 
cannot  be  reserved  to  a  stranger     ...       173 
RE-ENTRY,  right  of,  how  waived         .       139,  &c.— 173,  &c. 
REGISTER,  PARISH,  when  evidence  .       254 

REMAINDERMAN, 

when  required  to  give  a  notice  to  quit  .  107.  117 

time  at  which  such  notice  must  expire          .  .133 

for  entry  of,  to  avoid  a  fine       .  .  .93 

laches  of  one  no  prejudice  to  another  .  .         93 

not  competent  witness  in  ejectment  .  .       250 

RENT, 

receipt  of,  when  tenancy  created  by  .  104.  107 

notice  to  quit  waived  by,  when     .  139,  &c. 

forfeiture  waived  by,  when  .  .       173 

by  feme,  after  separation  from  baron  114 

distress  for,  when  waiver  of  notice  to  quit     .  143,  144 

non  payment  of,  proviso  for  re-entry  for — Fide  Proviso. 

increase  of,  new  tenancy  not  created  by  .135 

refusal  to  pay,  when  disclaimer  of  tenancy  .  .119 

usual  notice  to  quit  required  though  payable  quarterly    132 

double,  action  for     .  .  .  .  .143 

in  arrear,  how  recoverable  under  4  Geo.  II.  c.  28  150 


INDEX.  413 

RENT,  .         Page 

forfeiture  by  reason  of.  how  waived  .       160 

not  payable,  when  estate  from  which  it  arises  extin- 
guished      172 

notice  to  produce  receipts  of  ...       278 

action  for  double     .  .  .  .143.  329  (gr) 

RENT-CHARGE,  grantee  of,  may  bring  ejectment,  when      78 
REPLICATION,  rule  for,  when  granted  .  244.  2^5 

REPLY  GENERAL,  defendant  when  entitled  to  .       2^9 

REPUTATION,  when  evidence  .  .  .       254 

RESTITl  TION,  writ  of  .  .  .225 

REVERSION,  assignee  of— Fide  Assignee. 
REVERSIONER, 

when  required  to  give  a  notice  to  quit          .  107-  117 

time  at  which  notice  to  quit  by,  must  expire  .       133 

when  within  32  Hen.  VIII.  c.  33.     .  .  .         43 

time  for  entry  of,  to  avoid  a  fine      .  .  .93 

may  take  advantage  of  a  forfeiture,  when  .  .       172 

RIVULET 18 

ROOM  ......         24 

RULES  OF  COURT, 

Hilary,  1649.  ....       242 

Michaelmas,  1654.        ...  178  (o) 

Trinity,  14  Car.  II.      .  .  .  .       223 

15  Car.  II.       .  .  .  .       235 

18  Car.  II.      .  .  .  .       242 

32  Car.  II.      .  .  .  .       221 

Michaelmas,  33  Car.  II.  .  .       223 

31  Geo.  III.         .  .  .222 

Easter,  48  Geo.  III.     .  222 

S. 

SCIRE  FACIAS,  when  necessary  in  ejectment  311.  339 

SEIZIN  IN  FEE,  how  proved  .      252 

SIGNATURE,  to  will                .            .            .  .261 
SOCAGE— -Vide  Guardians. 

STABLE  23 


414  INDEX. 

STATUTES, 

13  Edw.  I.  c.  24.      jjjK  f  .  .5 

4  Edw.  III.c.  7.                     .  .  .        72 

8  Hen.  VI.  c.  16.                    .  .  .         79 

18  Hen.  VI.  c.  6.                      .  .  .79 

4  Hen.  VII.  c.  24.      .  .  .90 
11  Hen.  VII.  c.  20.      .             .  .  .         38 
27  Hen.  VIII.  c.  10.                 .  .  80,  &c. 
32  Hen.  V11I.  c.  1.      .             .  .  .       270 
32  Hen.  VIII.  c.  7-      .            .  .  .16 
32  Hen.  VIII.  c.  28.    .             .  .  .         38 
32  Hen.  VIII.  c.  33.    .              .  .  .  43.  46 
32  Hen.  VIII  c  34.     .             .  .  .74 

2  &  3  Edw.  VI.  c.  13.  .  80 

13  Eliz.  c.  7-  •  •  .  .69 

13  Eliz.  c.  10.  .  .  .  .  195 

21  Jac.  I.  c.  16.  ...  46.  100 

2  Car.  II.  c.  24.                       .  .  .         68 

16  &  17  Car.  II.  c.  8.               .  .  313.  339 

17  Car.  II.  c.  8.                         .  .  .       298 

19  Car.  II.  c.  C 257 

29  Car.  II.  c.  3.                         .  .     72.  108. 259 

5  &  6  Wn>.  III.  c.  12.             ...       298 
8  &9  Wm.  III.  c.  11.              .  .  298.  304 

10  &  11  Win.  HI.  c.  16.           .  .       190 
4  Anne,  c.  16.            .  99 

8  Anne,  c.  14.             .              .  .  .       144 
4  Geo.  II.  c.  28.         .     126.  143.  147-  150.  221.  282 

1 1  Geo.  II.  c.  19.         .              143.  161. 227.  239-  329 
26  Geo  II.  c.  6 266 

9  Geo.  III.  c.  16.       .            .  .  46.78 
31  Geo.  III.  c.  35.       .             .  .  .265 
43  Geo.  III.  c.  75.                     .  .  .         88 
49  Geo.  III.  c.  121.     .             .  .  .333 
55  Geo.  III.  c.  1<<4.      .  .270 

STATUTE  MERCHANT— Tide  Conusee. 
SUBSCRIBING  WITNESSES, 

notice  to  quit  should  not  have,  and  why  .  .      125 


INDEX.  415 

SUBSCRIBING  WITNESSES,  Page 

to  devise  of  freehold,  must  be  three               .  .       260 

who  may  be                .  .       265 

SURRENDER, 

of  term  when  presumed        .             .              .  .87 

of  copyholds,  how  proved    .             .             .  257-  270 

T. 
TENANTS, 

joiut  and  in  common. 

may  maintain  ejectment  against  co-tenants,  when  88 
wlii-n  affected  by  21  Jac.  I.  c.  16.  .  .  46 
demise  by,  how  laid  ....  186 
entry  of  one  is  entry  of  all  .  .  97 
possession  of  one  is  possession  of  all  .  .55.96 
what  acts  of,  are  ousters  of  companions,  55,  &c. 
fiur  by  one  no  ouster  of  others  .  56.  96 
how  notice  to  quit  should  be  given  by  .  120 
notice  to  quit  to  one  will  bind  all,  when  .  123 
service  of  declaration  upon  one  good  against  all  212 
special  consent  rule,  when  granted  to  .  2~>6 
evidence  in  ejectments  by  .  .  275 
may  bring  action  for  mesne  profits  against  co- 
tenants  .  .  .  330, 331 

in  tail, 

may  discontinue  their  estates,  and  how  34,  &c. 

maintain  ejectment            .              .  .61 

equitable  cannot  make  leases                .  .         86 

fine  by,  when  avoided  by  entry              .  .         93 

for  life, 

may  maintain  ejectment            .             .  .61 

entry  necessary  to  avoid  fine  levied  by  .         86 

not  necessary  to  avoid  fine  accepted  by  96 

estates  of,  determinate  by  entry  only  174,  175 

from  year  to  year, 

may  maintain  ejectment            .              .  .61 

give  notice  to  quit             .             .  .145 

origin  and  history  of  .              .              .  102,  &c. 

estates  of,  how  determined       .             .  103.  145 


41C  INDEX, 

TENANTS, 

who  are  implied  .  .  .  107,  &c. 

at  will, 

who  were  formerly       ....       102 
who  so  denominated  now          .  .  .       103 

mortgagors  are  not      ....       IOC 
tenancy  of,  how  determined     .  .  116,  117 

demise  against,  how  laid          .  .  .       191 

in  possession, 

declarations  by,  as  to  commencement  of  tenancies  280 
how  to  serve  declaration  upon  .  209,  &c. 

must  give  notice  of  delivery  of  declaration,  when    227 
appearance  by,  how  made         .  .  .       238 

how  to  act  if  material  witnesses  .  .       288 

service  of,  declaration  upon  one  of  two,  good 

against  both          ....       212 
not  competent  witnesses,  whrn  .  • .       250 

may  dispute  landlord's  title,  when        .       32,  33.  247 

TENEMENT 22,22(0) 

TERM, 

when  first  recovered  in  ejectment     . ,  .  .  8 

in  declaration — Vide  Demise, 
for  years, 

not  within  statute  of  uses          .  .  .Si 

surrender  of,  when  presumed  .  .         87 

outstanding  will  bar  ejectment  .  .         32 

assignment  of,  not  a  lease        .  .  163,  1fi4 

notice  to  quit  not  necessary  at  end  of  101,  102 

TERRE-TENANTS, 

idre  facias  in  ejectment  must  be  against     .  .311 

TERRIERS,  when  evidence       ....      274 
TITHES, 

ejectment  will  lie  for,  and  when        .  .  16.  80 

how  to  be  described  in  demise,         .  .  .26 

demise  of,  how  laid  .  .  .  .194 

ouster  of,  how  laid  .  ,  .       200 

.evidence  in  ejectments  for  ...       273 

TITLE  LEGAL  .....        32 

TOMB-STONE,  inscriptions  on,  proof  of  death  .      256 


INDEX.  417 

fefi 

TONSURA  PRIM  A      .  ...        19 

TOWNSHIP 22 

TRIAL, 

notice  of — Vide  Notice, 
how  to  proceed  at, 

when  a  sole  defendant  will  not  confess  .       288 

some  of  several  will  not  confess     .  .       290 

old  practice  in  such  case  290,  (o) 

variance  between  issue  and  record  .       290 

day  of  demise  posterior  to  time  of  .       291 

at  bar,  when  and  how  granted          .  .  .       291 

new,  how  and  when  moved  for  and  granted  .       293 

proceedings  under  4  Geo.  II.  c.  28.  not  staid  after  155, 157 

TROVER,  verdict  in,  no  evidence  of  possession  .       285 

TRUSTEES, 

may  maintain  ejectment       .  .  .  32, 33 

in  what  cases  .  80,  &c. 

demises  by,  when  necessary  .  .  .187 

stat.  21  Jac.  I.  c.  16.  runs  against  when       .  .         52 

TRUSTS,  when  executed  by  statute  of  uses        .  75,  &c. 

U. 
UNDER-TENANT, 

cannot  dispute  original  lessor's  title              .  .  248 

bound  by  notice  to  quit  to  tenant     .             .  .  123 

delivery  of  notice  to  quit  to  relation  of,  not  good  .  123 

UNDERWOOD             ...  .25 

USE  AND  OCCUPATION,  action  for, 

when  waiver  of  notice  to  quit            .              .  .  144 

what  mesne  profits  may  be  recovered  in       .  .  329 

V. 

VALUE,  DOUBLE,  action  for               ...  144 

VARIANCE  between  declaration  and  issue        .  .  245 

issue  and  record                .  .  290 

verdict  and  judgment        .  .  295 

VENIRE,  how  awarded  when  one  defendant  dies  .  299 

VENUE 186 

VERDICT, 

is  not  evidence  in  second  ejectment               .  .  294 
53 


418  INDEX. 

VERDICT,  Page 

is  ground  of  judgment          ....       294 
every  intendment  made  to  support  .  295,  &c. 

title  defectively  set  out,  cured  by  .  .       297 

entered  for  defendants  who  do  not  appear   .  .       290 

tumble,  will  cure  misjoinder  of  assault  and  battery  with 

ejectment         181 

VESTRY 24 

VICAR, 

may  maintain  ejectment,  when         .  .  .80 

evidence  in  ejectments  by    .  .  .  .       273 

W. 
WAIVER — Vide  Notice  to  quit  and  Covenant. 

WASTE, 

can  only  be  committed  of  thing  demised       .  .167 

rule  not  to  commit  pending  error      .  .  .       315 

encroachment  on,  qucere  to  whom  it  belongs  .         53 

inclosure  from          .  .  .  .  .65 

WATER-COURSE 18 

WIDOW  may  bring  ejectment  for  her  free  bench  .         67 

not  for  dower  before  assign- 
ment       68 

WIFE.— Vide  Feme  Covert. 
WILL, 

forms  necessary  to  pass  freeholds  by  .  260,  &c. 

how  proved  .  .  .       267 

what  sufficient  to  pass  copyholds     .  .  .       270 

copy  of,  when  evidence        ....       269 

probate  of,  when  evidence  .  .  .       271 

when  not  ....      269 

WITNESSES, 

when  incompetent  from  interest        .  .  .       250 

to  a  devise  of  freeholds, 

how  many  necessary    ....       260 
mode  of  attestation  of  ...      262 

who  may  be     .  .  .  .  .       265 


PRACTICAL  FORMS. 


AFFIDAVIT,  Pafe 

to  move  for  judgment  against  casual  ejector            .  345 

of  executing  power  of  attorney        .             .            .  343 
of  service  of  declaration 

upon  *ne  tenant  only         ....  351 

when  several  tenants  are  in  possession      .             .  352 

service  is  upon  one  tenant  and  wife  of  another  353 

upon  stat.  4  Geo.  II.  c.  28.                ...  358 

for  rule  for  tenant  to  confess  lease  and  entry  only  359 

to  accompany  plea  of  ancient  demesne        .            .  362 

CONSENT  OF  ATTORNIES  for  tenant  to  be  admitted 

to  defend       357 

CONSENT  RULE,  common      .  .  .  .358 

to  confess  lease  and  entry  only       .       359 

DECLARATION  by  original,  on  a  single  demise          .       347 

on  a  double  demise  with  one 

ouster  349 
with  two 
ousters  350 

JUDGMENT  for  plaintiff  by  nil  dicit,  with  a  remittitur 

damna       356 

as  to  part  of  the  premises,  and 
for  defendant  on  a  nolle  proseqtd  as  to  the 

residue      3C4 


INDEX. 

Page 

.  LETTER  of  attorney  to  enter  and  seal  a  lease  on  the 

. 

premises  342 

LEASE  in  ancient  practice         ....  843 

NOTICE  to  appear  in  ancient  practice               .             .  344 

modern  practice               .             .  548 

NOTICE  to  quit,  by  landlord  to  tenant,  from  year  to  year  341 

by  an  agent  for  the  landlord  .             .  /  341 
where  the  commencement  of  the  tenancy 

is  doubtful  342 

by  a  tenant  from  year  to  year             .  342 

PLEA  of  not  guilty         .             .             .             .             .  36l 

ancient  demesne           ....  362 
POSTEA  for  defendant  on  a  nonsuit,  for  not  confessing 

lease,  entry,  and  ouster  363 

RULE 

for  judgment  for  the  whole  premises             .             .  354 

part  only          .             .             .  355 
where  part  of  premises  are  tenanted  and 

part  untenanted  355 

to  authorize  tenant  to  confess  lease  and  entry  only  359 

for  admitting  landlord  to  defend      .             .             .  360 
for  execution  against  the  casual  ejector,  where  the 
landlord  had  been  made  defendant,  and  failed  at 

the  trial                .....  365 
for  staying  proceedings, 

till  guardian  be  appointed  for  infant  lessor  to  answer 

costs  871 

security  be  given  for  costs     .             .             .  371 

until  costs  of  former  action  in  another  court  be  paid  371 

on  payment  of  mortgage  money,  &c.        .            .  372 

rent,  &c.    .             .             .             .  372 

WRIT, 

original  and  return  thereto  .  .  346, 347 

of  habere  facias  possessionem          '.            .            .  365 


INDEX.  421 

WRIT,  Page 

on  a  double  demise          ....  366 

and  jferi  fmcias  in  one     ....  367 

capias  ad  sutisfaciendum  in  one                       .  S68 

including  costs  in  error             .             .  368 

of  restitution            .....  369 

of  »cire  facias  for  plaintiff  ....  369 


THE  END. 


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